INTRODUCTION TO THE STUDY
Background
Twenty million families in the United States have at least one family member with a
disability. According to the U.S. Department of Education, in 2010-2011 nearly 6.4 million
children from the ages of 3-21 receive special education and related services. This number
represents 13% of all children enrolled in public schools.
The legislation protecting individuals with disabilities received its impetus from the civil
rights movement of the 1960s. Since 1973, the federal government has passed and reauthorized
three statutes protecting the rights of adults and children challenged by disabilities. These
statutes include the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and
the Individuals with Disabilities Education Act.
Prior to the passage of these Acts, our Nation’s response to students with disabilities was
generally segregation and exclusion. One could argue Aristotle’s philosophy, written over two
thousand years ago in the third century B. C., provided a roadmap for including children
challenged by disabilities in public schools. Aristotle believed children should be educated
together with others unlike themselves. Aristotle envisioned common schooling permitting and
encouraging children to be educated together. He believed this was more conducive to mutual
goodwill and accepted societal outcomes than an educational approach that did not facilitate
children coming to know each other.
Groundbreaking legislation opened the public school doors to students with disabilities.
2
Initially passed as the Education for All Handicapped Children Act and later renamed the
Individuals with Disabilities Education Act (IDEA),10 this legislation was expressly written for
children with disabilities and enabled them to receive special education and related services in
public schools. In 2004, the 108th Congress wrote
Disability is a natural part of the human experience and in no way diminishes the right of
individuals to participate in or contribute to society. Improving educational results for
children with disabilities is an essential element of our national policy of ensuring
equality of opportunity, full participation, independent living, and economic
selfsufficiency for individuals with disabilities.
In addition to the IDEA, the ADA and the Rehabilitation Act both address the obligation
of public schools to meet the needs of students challenged by disabilities. The ADA and the
Rehabilitation Act were not written specifically for children unlike the IDEA. These Acts were
more broadly designed to enable all people with disabilities to receive the same opportunities as
people without disabilities. However, both Acts have sections applying to public schools: Title II
and §504 respectively. Collectively, the Rehabilitation Act, the ADA and the IDEA form the legal
framework for providing an appropriate education for students with disabilities in
America’s schools.
Just as the IDEA opened the schoolhouse doors for students with disabilities, the
Department of Justice opened those same doors to service animals 35 years later. Under the
ADA’s Department of Justice regulations, a service animal is an example of a reasonable
accommodation available to an individual challenged by a disability (e.g., a child attending a
public school). Title II of the ADA requires public schools to make reasonable modifications of
policies, practices or procedures when these modifications are necessary to avoid discrimination
on the basis of disability. Allowing a service animal to attend public school represents one type
of change required for those policies, practices, and procedures.
3
The presence of service animals in public places has become more common in recent
years. In the United States, as early as the 1920s, service animals were trained to help people
who had vision difficulties. These animals were more commonly referred to as “seeing-eye
dogs.” Over the years, the role of the service animal grew. The first use of a service dog to help a
person with a hearing impairment was recorded in 1976. Today service animals are also used to
support individuals with epilepsy, diabetes, mobility difficulties, and autism.
The scenario below is an example of what one might observe in any community. An
older woman with a golden retriever wearing a service animal vest enters a local restaurant. The
woman can be overheard explaining to employees she has diabetes, and the dog is trained to alert
her to incorrect sugar levels. The woman is sitting with friends, talking and enjoying lunch, when
the dog suddenly stands up, gives a small yip, and nuzzles the woman. The lady pets the dog,
checks her blood sugar, and drinks some juice. The dog immediately quiets down.
Publicity about service animals, both positive and negative, is also increasing. On July
15, 2014, Fox News reported a story about Arkansas public school officials who forced a mother
to pay a $125 a week for a handler to accompany her seven-year-old son’s service dog to school.
The service dog was trained to alert others prior to the child having a seizure. Because the child
was too young to act as the dog’s handler, an additional adult was required when the service dog
accompanied the child. According to the child’s mother, once her son acquired his service dog,
his medication requirement was reduced. The superintendent told the reporter the dog’s
attendance was not necessary to the child’s education, so school officials would not pay for the
handler. The superintendent reported the child could be appropriately educated either with or
without the service animal because the school’s registered nurse served the needs of other
students with this type of health concern. Since the dog provided services no human could
4
perform, the mother believed the dog was essential for her child. The parents filed a complaint
with the U.S. Department of Education Office for Civil Rights (OCR) claiming discrimination
based on their child’s disability because school officials would allow the dog on campus only if
the family paid for the dog’s handler. School officials claimed they were not violating any law
and were acting in compliance with the ADA.18
The topic of service animals has grabbed the interest of the general public as
demonstrated by the September 2014, USA Weekend article. This Sunday supplement piece
explained the tasks service dogs could be trained to perform, where service dogs are allowed,
how service dogs are controlled, service animal etiquette, and how service animals differ from
comfort animals. It is estimated between 10,000-30,000 people with disabilities currently use
service dogs in the United States.20 These recent examples give credence to the perception of the
rising use of service animals.
People challenged with disabilities often encounter difficulty utilizing service animals
within their daily lives due to current lack of legal clarity. Entering the words “service animals”
on a Google search yields 164,000 hits. For both school personnel and parents this translates into
thousands of opportunities for misinformation or information overload. In addition, it is not
unusual to see people mocking the use of service animals. These attitudes can cause additional
issues for school officials.
Statement of Problem
A service animal accompanying a child challenged with a disability to public school
setting presents challenges for school officials. While the idea of service animals is not new, the
type of support these animals can provide to students with disabilities is growing. School leaders
5
are faced with many decisions related to the formulation of procedures allowing service animals
school access. These decisions also impact both other students and staff because the animal
attends school on a daily basis just like the student.
Neither current statutes nor case law provide school leaders with sufficient guidance to
confidently navigate these complicated waters. The fact three federal acts impacting the use of
service animals intertwine and overlap further muddles school officials’ decision-making
processes.
To date, state and federal courts have ruled in eight cases specifically addressing the
presence of service animals in public schools. Six of these cases alleged school officials
discriminated against the child based on §504 of the Rehabilitation Act and the other two cases
alleged school officials were not following school code. The decisions resulted in parents
prevailing in two cases involving §504 and both cases involving school codes. These four
decisions required school officials to allow the child to attend school with a service animal. In
three of the remaining four cases, the courts did not require school officials to allow the child to
attend school with a service animal. This interpretative variance among the federal courts further
limits school officials’ ability to establish clear and appropriate courses of action for responding
to parental requests for service animals to accompany their children to school.
Two additional factors make it more complicated to accommodate a service animal in a
public school as opposed to other forums. First, a handler must be responsible for the animal
regardless of the setting. Many children in public schools who request the use of a service animal
are unable to act as the handler because of their age or the significant nature of their disability.
Other public settings do not need to consider who the dog’s handler might be. The second
complicating factor in a public school setting is the animal attends everyday, meaning if another
6
student is fearful or a staff member has a significant allergy, there is no simple way for these
individuals to avoid the service animal.
The U.S. Supreme Court has not issued a decision involving the attendance of a service
animal in a public school. In the absence of this guidance, lower courts have applied varying
analyses to formulate their (sometimes conflicting) decisions. Similarly, law reviews and other
literature offer a variety of proposed (and again, conflicting) solutions or procedures for
appropriately responding to the use of service animals in public schools, once again leaving
school leaders searching for consistent guidance on how to respond. School officials do not want
to be involved in expensive legal battles, OCR complaints or be featured in an unflattering article
in the local or national news. For this reason, it is important school leaders receive reliable
guidance to help them formulate solid policies and procedures regarding service animals.
Purpose Statement
This study involved an extensive search for historical and current litigation and
legislation addressing issues related to the regulation of service animals within public schools.
This area of the law is evolving. Thus, this study summarized and analyzed the history and
current status of legislation and litigation for the purposes of providing educational
administrators with concise and understandable legal guidance regarding students with
disabilities and the use of service animal in the public schools.
Research Questions
This study investigated the following questions:
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1. What is the relevant legal history of federal statutes impacting disability
discrimination as related to the presence of service animals within the public schools?
2. What is the current status of the law in the area of the presence of service animals
within the public schools?
3. How can prior litigation addressing the presence of service animals in the public
schools inform school officials’ procedures and practices?
Delimitation of the Study
This study primarily utilized judicial decisions focusing on public schools, though several
parallel cases arising from accommodations provided to disabled individuals outside the public
school setting were also considered. Furthermore, all published court and OCR decisions
involving service animals in the public schools were used in this study since the number of cases
was small. The study also examines agency enforcements of the Individuals with Disabilities
Education Act 2004, the Rehabilitation Act of 1973, the American Disabilities Act, the
Department of Justice, the Office for Civil Rights, as well as state legislation.
Limitations of the Study
This study conducted an extensive search for litigation pertaining to public schools
surrounding accommodations, related services, discrimination, and service animals. However,
since not all court decisions are published, it is possible that there is additional case law on this
subject.
CHAPTER TWO:
REVIEW OF LITERATURE
The use of service animals is growing in the United States. Since public schools are a microcosm
of society, it is not surprising requests for service animals to attend public school are growing as
well. In the absence of a Supreme Court decision on service animals attending public schools, a
systematic review of disability legislation, governing agencies’ interpretation, and court decisions
helps school officials develop appropriate policies and procedures for allowing students to attend
school accompanied by a service animal.
The first section of this chapter reviews the legislation protecting students with disabilities
in the public schools. This review also includes a historical perspective of the legislation and the
court decisions shaping the judiciary’s interpretation of the laws impacting the presence of service
animals in public schools. The court decisions discussed this first section do not directly involve
the use of service animals in the public schools but are tangentially related to service animal issues.
The second section of this chapter reviews service animal regulations, the enforcement of the
regulations, state statutes, and the few existing judicial opinions directly related to the use a service
animal in public schools.
To date only three states, California, Illinois, and New Jersey, have enacted legislation
addressing a student’s right to attend school with a service animal. However, there are three
federal statutes that apply to public schools and also contain provisions addressing school
9
officials’ responsibility to allow school-aged children challenged by disabilities to attend school
with a service animal. These statutes are the Rehabilitation Act of 1973,Americans with
Disabilities Act of 1990 including the amendments enacted in 2008, and the Individuals with
Disabilities Education Act.
The ADA and §504 of the Rehabilitation Act often are grouped together because they
offer similar protections to individuals with disabilities.31 This is true especially as it pertains to
schools. The Rehabilitation Act was enacted as a civil rights law to prohibit agencies receiving
federal funds from discriminating against individuals with disabilities; whereas the purpose of
the ADA was to eliminate widespread discrimination against individuals with disabilities in all
aspects of society. The ADA’s enactment did not provide any additional protections for students
with disabilities attending public schools beyond those available through §504 and the IDEA.33
However, the 2008 amendments to the ADA and the Rehabilitation Act did impact public
schools.
The IDEA differs from both §504 and the ADA because it applies only to public schools
and provides states with a modicum of financial assistance for providing special education and
related services to any child with a recognized disability.
Federal Statutes Related to Disability Discrimination
The Rehabilitation Act of 1973 (§504)
The Rehabilitation Act of 1973 was the first federal law designed to protect disabled
persons from discrimination. The Rehabilitation Act prohibits agencies receiving federal funds
10
Id.
from discriminating against persons with disabilities. The Rehabilitation Act was generally
considered to be effective, but since it only covered agencies receiving federal funds, broad areas
of American life were not adequately addressed by this Act alone.
The Rehabilitation Act, initially proposed by a few senators, was passed with very little
legislative attention. The Act received widespread Congressional support despite serious
opposition from the business lobby. In Alexander v. Choate, the Supreme Court observed,
“discrimination against the handicapped was perceived by Congress to be most often the product,
not of invidious animus, but rather of thoughtlessness and indifference—of benign neglect.”
Senator Cranston, acting chairman of the subcommittee that drafted §504, described the Act as
Congress’ response to society’s neglect of the disabled.41 Because the proposed bill was designed
41
by a small number of legislators, it passed without “significant vetting or compromise.” The bill
was adopted without any accompanying social movement or public input. People generally
supported the rights of the disabled; however, there was ongoing concern over the cost of those
rights. Cost was the main reason President Nixon vetoed the Rehabilitation Act twice before he
signed it into law on September 26, 1973.45
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Statutory Definition of a Handicap
When the Rehabilitation Act was initially passed, it contained a vague definition of a
handicap. During the subsequent year, a more complete definition was developed and
incorporated into the Act via the 1974 amendments.47 The Rehabilitation Act defines an
individual with disability as, “Any person who (A) has a physical or mental impairment which
substantially limits one or more of such person’s major life activities, (B) has record of such an
impairment, or (C) is regarded as having such an impairment.” It has been suggested this broad
definition of a disability may have been the product of a desire to de-stigmatize the concept of
disability. The thought was by labeling more people as disabled, it might change public attitudes
regarding what it means to be disabled.
The terms “physical impairment” and “major life activities” are further defined by the
Act’s implementing regulations. These regulations describe a physical impairment as “any
physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or
more of the following body systems: neurological; musculoskeletal; special sense organs;
respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary;
hemic and lymphatic; skin; and endocrine; …”50
Section 504 of the Rehabilitation Act mandates recipients of federal financial assistance
not to discriminate against otherwise qualified individuals with disabilities. Public schools, as
entities receiving federal funding, must comply with this mandate. Section 504 of the
Rehabilitation Act was patterned after, and is almost identical to, the antidiscrimination language
of §601 of the Civil Rights Act of 1964 addressing race, color or national origin, and §901 of the
Education Amendments of 1972 (Title IX) addressing gender.
12
Id.
According to §504, if a reasonable solution or accommodation allows a disabled student
to be more mobile, communicate better, learn more, perform self-care, or perform other manual
tasks, school officials should provide that accommodation. A reasonable accommodation is
defined as a common-sense solution to an access request. Every accommodation request should
be decided on an individual basis.56 Regardless of the accommodation chosen, school
56
13
Id.
officials must provide the student access to a public education. Because the Rehabilitation Act
did not contain any funding, it was virtually ignored until the passage of the Americans with
Disabilities Act of 1990.
Rehabilitation Act Cases Prior to Passage of the ADA
There were early concerns regarding §504’s broad definition of disabled individuals.59
Initially, only a few cases reviewed by the courts under the Rehabilitation Act sought to expand
the definition of disability to cover more non-traditional disabilities, and generally these lawsuits
failed. In order to bring a case alleging discrimination under §504, the plaintiff must meet the
following four conditions. (1) The plaintiff must be disabled as determined by §504. (2) The
plaintiff must be otherwise qualified for the benefit or services sought. (3) The plaintiff must
have been denied benefit or services solely by reason of the disability. (4) The agency or
program denying access or services receives federal financial assistance. If the plaintiff satisfies
all of these requirements, the burden of proof to refute the claims falls to the agency or
program.62 If the agency or program can demonstrate the requested accommodation cannot
62
14
Id.
reasonably be made, the burden shifts back to the plaintiff to produce evidence the
accommodation is, in fact, practical (i.e., reasonable).
The first §504 cases decided by the U.S. Supreme Court developed this four-prong test.
Two of these decisions also provided insight into the Court’s views on the scope of 504’s
coverage and how this coverage could be applied to the discussion of service animals. These two
cases are reviewed in the next section along with a public school §504 case filed on behalf of a
student.
Southeastern Community College v. Davis The first case the Supreme Court decided
regarding the Rehabilitation Act involved a deaf student who sought accommodations from her
college’s nursing program. Although suffering from a serious hearing impairment, Ms. Davis
desired training to become a registered nurse. During the 1973-74 school year, Davis enrolled in
a program at Southeastern Community College. Southeastern was a state institution receiving
federal funds. Davis hoped to earn an associate’s degree in Southeastern’s nursing program,
thereby making her eligible for state certification as a registered nurse.
During an interview with a member of the nursing faculty, it became apparent Ms. Davis
had difficulty understanding questions. Davis admitted to both her history of hearing problems
and dependence on a hearing aid.68 She was advised to consult an audiologist. An examination at
Duke University Medical Center diagnosed Davis with a bi-lateral sensori-neural hearing loss. A
change in hearing aids was recommended. This improved her ability to hear sounds but did not
68
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allow her to discriminate sound sufficiently enough to understand normal spoken speech. She
continued to rely on lip-reading.
Southeastern consulted with the executive director of the North Carolina board of
nursing, who relying upon the audiologist’s report, recommended Ms. Davis not be admitted to
the nursing program. It was the executive director’s view that Ms. Davis’ hearing disability made
it unsafe for her to practice as a nurse and would make it impossible for her to participate safely
in the clinical training program. The modifications necessary to enable Davis’ safe participation
would prevent her from realizing the benefits of the program. These modifications included
individual supervision when Ms. Davis was attending to patients and waiving the requirement for
her to take certain classes.Ms. Davis asked the university to reconsider this decision. The entire
nursing staff at Southeastern met with the executive director for the North Carolina board of
nursing and deliberated. The staff voted to deny Ms. Davis admission to the nursing program.
Davis filed suit in the United States District Court for the Eastern District of North
Carolina alleging a violation to §504 of the Rehabilitation Act of 197373 and a denial of her right
to equal protection and due process under the 14th amendment of the U.S. Constitution. After a
bench trial, the district court entered judgment in favor of Southeastern Community College.74
The court confirmed the audiologist’s findings that even with hearing aids, Ms. Davis would not
be able to understand speech except through lip-reading. The court further found in many
hospital environments, doctors and nurses wear masks making lip-reading impossible. The court
16
concluded the disability prevented Ms. Davis from safely performing in both the training
program and nursing profession. The court’s concern was for the potential danger to future
patients. Based on these findings, the district court concluded Ms. Davis was not otherwise
qualified to be a nurse and therefore not protected by §504. A person must be otherwise qualified
in order to meet the second prong of the four-pronged test for §504 protection. Since this prong
was not met, Ms. Davis did not prove §504 discrimination.
Ms. Davis appealed to the Court of Appeals for the Fourth Circuit and the district court
decision was reversed. The appellate court did not dispute the district court findings of fact, but
found the lower court had misconstrued §504. The appellate panel believed §504 required
Southeastern to consider Ms. Davis’ application for admission to the nursing program based on
her academic and technical qualifications regardless of her hearing ability. The panel further
concluded the district court erred in its finding that Ms. Davis’ hearing difficulties caused her to
be not otherwise qualified for the program. The appellate court also stated §504 required
Southeastern to modify its program to accommodate the disabilities of applicants.
The Supreme Court granted certiorari. The Supreme Court looked to §504’s language and
determined the statute did not compel educational institutions to disregard the disabilities of
individuals or to make substantial modifications in their program to allow disabled persons to
participate. Instead §504 required only that an “otherwise qualified handicapped individual” not
be excluded from participation in a federally funded program “solely by reason of his handicap.”
In other words, the mere existence of a disability was not permissible grounds for assuming an
inability to function within a particular context. The Supreme Court agreed with the district
court’s original finding that an otherwise qualified person is one who is able to meet all of the
17
program’s requirements in spite of his disability. The Supreme Court further noted the
Department of Health, Education, and Welfare had observed, if taken literally, an otherwise
qualified individual could be a blind person who qualified to drive a bus except for sight and
could therefore be otherwise qualified to perform the job of driving. Clearly, Congress did not
intend this result.
In response to the argument that Davis’ requested modifications would allow her to
participate, the Supreme Court noted it would only be with individual supervision from the
nursing faculty that Ms. Davis could safely participate in the clinical portion of the program. If
Ms. Davis did not participate in the clinical portion of the program, this would constitute a
fundamental alteration to the program far exceeding §504’s modification requirements. The
Supreme Court also noted the Rehabilitation Act’s language and structure made a distinction
between evenhanded treatment of a qualified disabled person and affirmative efforts to overcome
the disabilities.
The Supreme Court found Southeastern did not violate §504 by concluding Ms. Davis did
not qualify for admission to its program. Neither §504’s language nor history indicated
limitations to an educational institution’s ability to require applicants to possess reasonable
physical qualifications. This meant Ms. Davis was not otherwise qualified for the benefit and
services and therefore did not meet §504’s requirement for determining discrimination.
School Board of Nassau County v. Arline Nearly ten years after the Supreme Court found
Ms. Davis not to be otherwise qualified to be a nurse, the Court granted certiorari to a case
involving whether public school employee was otherwise qualified to teach. This Supreme Court
decision involved an employment complaint regarding the dismissal of an elementary public
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school teacher. Gene Arline was fired from her teaching position after she suffered a third relapse
of tuberculosis within the span of two years.
From 1966 until 1979, Gene Arline taught elementary school in Nassau County Florida.
Her employment was terminated in 1979 after she suffered a third relapse of tuberculosis within
two years. She initially brought her case via state administrative proceedings, but this attempt
failed. She then filed suit in federal court alleging a violation to §504 based on the school board’s
decision to dismiss her due to her tuberculosis. A trial was held in the United States District
Court for the Middle District of Florida. The medical evidence showed Mrs. Arline had been
hospitalized for tuberculosis in 1957. For the next 20 years, the disease was in remission. In
1977, a culture revealed the tuberculosis was again active. Cultures taken in March of 1978 and
November of 1978 were also positive.87 After her second relapse in the spring of 1978 and her
third relapse in the fall of 1978, school officials suspended Arline with pay for the remainder of
the school year. At the end of the 1978-1979 school year, the school board discharged Mrs.
Arline because of the reoccurrence of her tuberculosis.89
Mrs. Arline argued the school board dismissed her on the basis of her illness, and since
the illness qualified her as a person with a disability, her dismissal constituted a §504 violation.
The district court found Mrs. Arline was not disabled under the statute. The court did not believe
Congress intended a contagious disease to be included within the definition of a disability. The
district court further concluded even if a contagious disease did qualify as a disability, Arline was
not otherwise qualified to teach elementary school because of the contagion risk.
The United States Court of Appeals for the Eleventh Circuit reversed the district court
decision. The appellate panel ruled a person with a contagious disease fell within §504’s
19
coverage and remanded the case for further findings to determine whether the risks of infecting
others precluded Mrs. Arline from being “otherwise qualified” for her teaching job and, if so,
whether it was possible to make some reasonable accommodation that would allow her to teach
or serve some other position in the school district.
The Supreme Court granted certiorari. In addition to reviewing §504’s wording, the
Supreme Court looked at the regulations written by the Department of Health and Human
Services because these regulations were drafted with approval of Congress. The Supreme
Court’s review of Mrs. Arline’s medical records showed her 1957 hospitalization for tuberculosis
established she had a record of impairment within the meaning of Rehabilitation Act. The
Supreme Court also found she was a person with a disability under the “regarded-as” prong of
the definition of a “handicap” under the Rehabilitation Act.
School officials argued it had not released Arline from her teaching position because of
her own diminished capacities caused by the illness, but rather because her relapses made her a
threat to others. The Supreme Court rejected this argument reasoning it was unfair to allow an
employer to distinguish between the effects of a disease on others and effects of the disease on a
patient. The Supreme Court noted a person’s physical impairment that did not substantially limit
an individual’s capabilities could nevertheless substantially limit the ability to work as a result of
others’ negative reactions to the impairment. Under the “regarded as” definition, others’
unfavorable reaction to the impairment can limit a person’s ability to work. The Court pointed
out Congress had acknowledged society’s myths and fears about disability and disease could be
as handicapping to the individual as the impairment’s physical limitations. In addition, Justice
Brennan pointed out few aspects of a handicap give rise to the same level of public fear as
20
contagion. The Court concluded a person with a record of physical impairment, which was also
contagious, was not reason to remove the person from §504’s coverage.
The Supreme Court ruled a contagious disease, in this particular case tuberculosis, fell
within the definition of a disability. The Court noted some people with contagious diseases may
pose a threat to others but this did not exclude coverage under the Act of all persons with actual
21
Id.
or perceived contagious diseases. Each case must be considered on its own merits based on the
relevant medical information.
The remaining question was whether Mrs. Arline was otherwise qualified for the job as
an elementary schoolteacher. The Supreme Court ruled the district court case had not answered
the questions about the duration or severity of Arline’s condition nor whether she would be likely
to transmit the disease. In addition, the district court did not determine if school officials could
have accommodated Arline at the time of her dismissal. Because of the lack of information on
these issues, the Supreme Court remanded the case to the district court to determine whether
Mrs. Arline was otherwise qualified for her position. On remand, the district court found Mrs.
Arline was otherwise qualified for her position as an elementary school teacher. The court
ordered school district officials to pay Mrs. Arline full salary and benefits for four years to cover
the years she looked for a teaching position after she was fired. In addition, the court ordered
school officials to either rehire Mrs. Arline or pay her the equivalent salary until she retired.
The Arline case was decided while Congress was in the process of drafting the
Americans with Disabilities Act. The Arline case was significant because it appeared to be one of
the reasons the Rehabilitation Act’s definition of a disability was incorporated into the ADA’s
definition.105
22
105
Thomas v. Atascadero Unified School District Section 504 was designed to protect not
only public school employees but also its students. The courts affirmed this to be true in this case
involving a public school student.
Robin and Judy Thomas brought action against the Atascadero Unified School District of
California in the United States District Court of the Central District of California for excluding
their son Ryan from kindergarten because he was infected with AIDS. Ryan had contracted AIDS
as an infant from a contaminated blood transfusion he received to treat complications arising
from his premature birth. He suffered from significant impairment of his major life functions as
result of his illness.109 Prior to his diagnosis, Ryan had frequent pulmonary and middle ear
problems and well as chronic swollen lymph nodes. These difficulties were attributed to his
infection with the AIDS virus. In 1985, after the diagnosis and receipt of treatment, his medical
condition improved.
In May1986, the school board adopted an admission policy for students infected with
communicable diseases including AIDS. This policy created a placement committee comprised
of health professionals, parents, and school officials to advise the school board on the placement
of children covered by the policy.
Because of his infection with the AIDS virus, the placement board considered whether
Ryan should be placed in a regular classroom. Both of his treating physicians reported there were
no medical reasons indicating Ryan could not attend regular kindergarten. Therefore the
placement committee recommended Ryan’s admission to a regular kindergarten classroom.
23
Id.
On September 8, 1986, during a skirmish with another child, Ryan bit the other child’s
pant leg. No skin was broken. The superintendent instructed the parents to keep Ryan home after
the incident until the placement committee could reconsider its previous recommendation in light
of the incident to determine whether Ryan’s potential for biting other students posed a
danger to other students in the class.
On September 12, 1986, the placement committee recommended a school psychologist
evaluate Ryan. In late September, Dr. Shira, a psychologist employed by the San Luis Obispo
County Board of Education, conducted this evaluation and predicted Ryan would behave
“aggressively” in a kindergarten setting because his level of social/language skills and maturity
was below those of his classmates. Dr. Shira could not forecast what form Ryan’s aggressive
behaviors might take. Therefore, Dr. Shira could not assure Ryan would not bite another child.
Based on this evaluation, the placement committee recommended Ryan not be allowed to return
to the kindergarten classroom but instead should be provided with home tutoring for the
remainder of the academic year. On October 6, 1986, the school board voted to exclude Ryan
from attending school until January 1987, at which time Ryan would be reevaluated, and the
decision to exclude him would be reconsidered.116
116
The parents filed a complaint with the U.S. District Court for the Central District of
24
California claiming the school officials had discriminated against Ryan based on his disability.
On December 29, 1986, the district court ruled the School District was the recipient of federal
funds and therefore fell under the jurisdiction of §504 of the Rehabilitation Act. The court further
noted Ryan was an individual with a disability under the Rehabilitation Act’s definition.
Ryan was also “otherwise qualified” to attend kindergarten under §504. Finally, the district court
found Ryan had been subjected to different treatment than the treatment received by other
kindergarten students, and school officials had excluded him from his kindergarten class because
of his disability. The district court further found even though the school officials used the Center
for Disease Control (CDC) and the American Academy of Pediatrics (AAP) guidelines
concerning the education of children with AIDS, school officials presented no medical evidence
indicating human bites could transmit the AIDS virus.
Therefore, according to the district court, school officials had not complied with the
requirement that a child with a disability should be placed in a regular educational environment
unless it was demonstrated the child could not be satisfactorily educated in the regular education
environment with the use of supplementary aids and services. Based on these conclusions, the
district court ruled Ryan had suffered irreparable injury as a result of his exclusion. School
officials were prohibited from excluding Ryan from attending kindergarten and directed to allow
him to return to his kindergarten classroom. The court further acknowledged Ryan could be
suspended or expelled as a means of discipline in accordance with California Education Code;
however, he was not to be excluded on the grounds that he posed a risk of transmitting the AIDS
virus to classmates or teachers. In addition, the parents were awarded $42,387 in attorney fees
and court costs. There was no appeal.
25
Id.
Americans with Disabilities Act
The Americans with Disabilities Act was passed by Congress in 1990 and signed into law
by George H. W. Bush. The Act provides equal opportunities for people with disabilities to
access programs, services, and facilities. The ADA is a comprehensive ban on discrimination not
limited only to government agencies as is the case with §504 of the Rehabilitation Act. Although
access for persons with disabilities is also aimed at governmental bodies, including townships,
cities, counties, and states; the Act’s employment provisions were designed to provide job
opportunities for the disabled in order to integrate them into the work environment. The statute
not only prohibits discrimination but also requires employers and governmental bodies to
provide reasonable accommodations to persons with a disability in order to increase their access
to employment opportunities.130 One of the ADA’s goals is to
130
26
Id.
provide individuals with disabilities legal recourse to redress discrimination. The ADA evinces a
legislative intent to protect children and adults with disabilities from being excluded and treated
as second-class citizens. The ADA outlaws discriminatory practices and policies against people
with disabilities regardless of federal funding.
The ADA was not intended to be an exclusive remedy or to preempt state law. The Act
provided a floor limit on what covered entities must do but not a ceiling; thereby, inviting states
and courts to impose greater obligations for employers and others covered by the Act. As a result,
states may adopt legislation allowing expanded utilization of service animals within the public
school setting.
The Americans with Disabilities Act was introduced and initially championed by
members of Congress who had personal experience with disabilities either in their own lives or
those of a relative. For example, Tony Coelho, the primary House sponsor, had epilepsy and
experienced discrimination as a youth. In the senate, Tom Harkin, whose brother was deaf, took
a leading role. Also Senator Ted Kennedy whose sister suffered from a cognitive disability,
Senator Orin Hatch whose brother-in-law had polio, and Senator Bob Dole who lost use of his
right arm in the military joined Senator Harkin in this endeavor.137 As a result, the ADA secured
a quick adoption without a substantial social movement much like the Rehabilitation Act’s
27
Id.
137
adoption. Congress passed a broad statute modeled after the Rehabilitation Act then relied on
specific agencies and special interest groups to define the particulars. Instead of adopting narrow
language, these special interest groups opted for broad language similar to the wording of the
Rehabilitation Act and designed to bring a much larger group of individuals under the statute’s
coverage. Many of these individuals would not have been considered disabled before adoption of
the ADA.140
The ADA passed with almost unanimous support in both houses of Congress. The only
significant Congressional ADA debates were over the potential costs associated with the
accommodation provisions. Some viewed the lack of debate as a problem because the debates
would have forced the advocacy community to justify the broad disabilities’ definition that
included people who would not have been considered disabled prior to the enactment of the
statute. Due to this lack of discussion, there was no consensus regarding whether society or the
courts would support this broad definition of a disability.
Three features of the Rehabilitation Act correlate with the ADA’s passage. First, both
were passed due to the efforts of handful of Senators with a deep interest in disabilities. These
Senators were allowed to shape the legislation without much compromise. Second, the statues
were adopted without much public input or societal commitment to the rights of the disabled.
Finally, Title II of the ADA also included public schools just like §504 of the Rehabilitation Act.
In the school setting, these two Acts provide a basis for alternative remedies to the
Individual with Disabilities Education Act. Although there are subtle differences between the
ADA and §504 of the Rehabilitation Act, the standards adopted by Title II of the ADA for state
28
and local government services are generally the same as those under §504 for federally assisted
programs and activities.
In 2014, the Department of Education and Department of Justice issued a joint “Dear
Colleague” letter explicating the ADA’s effective communication requirements. Pursuant to this
letter, school officials must apply Title II analysis to IDEA-eligible students. This guidance could
also be applied to the use of service animals in public schools.
The “Dear Colleague” letter further stated, “Title II requires covered entities, including
public schools, to give ‘primary consideration’ to the auxiliary aid or service requested by the
student with the disability when determining what is appropriate for that student.” This means
when the public school officials determine providing a particular auxiliary aid or service would
result in a “fundamental alteration in the nature of the a service, program, or activity, or an undue
29
financial and administrative burden; the school does not need to provide that auxiliary aid or
service.” The school official must consider all of the school district’s resources and provide a
written explanation of the fundamental alteration or undue financial burden that would result if
the accommodation were provided. The DOE and DOJ jointly caution, “In most cases,
compliance would not result in undue financial or administrative burden.”
Public schools cannot charge parents for auxiliary aids or services they provide to
students.152 “Public schools must apply both the IDEA analysis and the Title II effective
communication analysis in determining how to meet the communication needs of an IDEA
eligible student with a hearing, vision, or speech disability.” Title II and its regulations require
public schools to ensure communication with students who have hearing, vision and speech
disabilities is as effective as communication with non-disabled students. If the special education
and related services provided under the IDEA are not sufficient to ensure the student with a
disability has access to and is able to participate in the school’s program at a level commensurate
with non-disabled students, the student with disabilities may receive more service and aids under
Title II. “In some instances, in order to comply with Title II, a school may have to provide the
student with additional auxiliary aids and services not required under the
IDEA.”
Statutory Definition
To receive ADA protection, an individual must meet at least one of the Act’s three
definitions of “disabled.” An individual must have “(A) a physical or mental impairment that
30
substantially limits one or more of the major life activities of such individual;” “(B) a record of
such an impairment;” or “(C) be regarded as having such an impairment.”
Generally, there is a basic understanding of traditional disabilities such as hearing, vision,
and orthopedic challenges, but outside that core understanding there has been very little
consensus regarding who is considered to be disabled. In addition, the assortment of disabilities
causes difficulty in interpreting the statute. For example, a disability can be permanent,
temporary, present at birth, stem from an accident, or develop later in life.
Disabilities may be either visible or hidden and the same condition may affect people differently.
All of these factors complicate the notion of a disability and require effort to determine who is
disabled.
The term “substantially limits” refers to individuals with a disability in comparison to
most people in the general population. The impairment need not prevent or severely restrict the
individual in performing a major life activity. Temporary non-chronic impairments of short
duration with little or no residual effects are usually not considered disabilities. An example of
this type of impairment is a broken limb. Although, the person might have difficulty performing
major life activities while the limb is healing, there are usually no long-lasting difficulties.
ADA Titles
The ADA contains five titles. Title I of the ADA forbids employment discrimination by
employers with fifteen or more employees. This is the same threshold applied by Title VII of the
Civil Rights Act. However, individual states may enact laws encompassing businesses with fewer
employees.
31
Title II “applies to any state or local government, department, agency, special-purpose district
or other instrumentality of state or local government.” This includes schools. If an entity has
taxing authority, it falls under the auspices of Title II. The words “other instrumentality” in the
clause refer to agents of a governmental entity. For example, a construction company performing
a service at a public school district, a taxing body, needs to follow Title II just like the school
district.
The ADA has specific rules for providing public access.171 Title II defines
“discrimination” as “no qualified individual with a disability shall, by reasons of such disability,
be excluded from participation in or be denied the benefits of services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.” The ADA does not require
states to employ any and all means to make services accessible or to compromise essential
eligibility criteria for public programs. It requires only reasonable modifications that do not
“fundamentally alter the nature of the service provided, and only when the individual seeking
modification is otherwise eligible for the service.”
Title III applies to private entities serving as public accommodations. Public
accommodations include hotels, restaurants, theaters, stadiums, shopping centers, privately
owned public transportation, museums, and other public services. Title IV requires
telecommunications providers to enhance services for people who are deaf, hearing impaired, or
speech impaired. Finally, Title V sets forth miscellaneous matters such as abrogation of state
immunities, prohibitions on retaliation and coercion, and authorization of attorney’s fees.
Other federal laws ban disability discrimination in public and private housing and air travel.
32
McDonnell Douglas v. Green
A court has several options for determining disability discrimination under the ADA.
However, the McDonnell Douglas test is the standard most courts apply in ADA discrimination
litigation.
In this decision regarding Title VII of the Civil Rights Act of 1964, the McDonnell
Douglas Corporation did not rehire Green, an aircraft mechanic, though there were open positions
for which he was qualified. Green argued he was not rehired due to his race and his participation
in civil rights activities. McDonnell Douglas argued the decision not to rehire Green was not
related to his race but rather Green’s participation in the illegal activity of stalling his car on the
main road to the factory in order to block the employee entrance to the McDonnell
Douglas St. Louis facilities. In the initial ruling, the United States District Court for the
Eastern District of Missouri dismissed Green’s racial discrimination claims and found the
corporation’s refusal to rehire Green was based on his participation in the “stall in.” The Court of
Appeals for the Eighth Circuit agreed. However, the appellate panel reversed the dismissal of the
racial discrimination claim because Green had not been given an opportunity to present his case.
The appellate panel remanded the case to the district court.
The Supreme Court granted certiorari and formulated a test defining a prima facie case for
racial discrimination. The test required the claimant carry the initial burden of proving the
following: 1. The claimant belonged to a minority race. 2. The claimant applied for and was
qualified for an open position. 3. The employer rejected the claimant. 4. Employer continued to
seek a person to fill the position after the rejection. If the claimant met these prerequisites, the
33
burden shifted to the employer to prove the existence of a legitimate nondiscriminatory reason for
the adverse employment decision.
The Supreme Court agreed with the Eighth Circuit’s decision that Green should have been
allowed the opportunity to present his case on discrimination to the district court. The
Court did not dispute McDonnell Douglas’ right to refuse to rehire a person who had engaged in
illegal activities against the corporation. However, the court found Green had the right to
demonstrate through evidence that the rejection was a pre-text for a racially discriminatory
decision. The Supreme Court remanded the case to the district court.189 On remand both the
district court and the appellate court later ruled Green had not been discriminated against based
on his race.
When applying the McDonnell Douglas test to a disability claim, the plaintiff must satisfy
three requirements to establish a prima facie case of discrimination. First, the claimant must prove
he or she is a qualified individual. Under Title VII of the Civil Rights Act of 1964, an individual
meets the criteria based on race, age, or gender. When the Court applies the McDonnell Douglas
test to an ADA claim, the three definitions of disability are used to determine an individual is a
disabled. For example, a claimant may establish he has a physical or mental impairment that
substantially limits one or more major life activities, he has a record of having a disability, or
show he is “regarded as having an impairment.”195 Under the last option, the person who
allegedly discriminated against the claimant perceives the individual as having a disability, even
if the person does not have the expected or disabling consequences related to the condition. Once
the claimant has proven the existence of a disability, the second step in the McDonnell Douglas
test is to determine whether the claimant is qualified to perform the necessary functions of the job
34
either with or without accommodations. The third and final element requires showing the
claimant suffered an adverse employment action.
The fundamental difference between antidiscrimination protection for the disabled and
other antidiscrimination mandates is Title VII of the Civil Rights Act of 1964 prohibits
employment discrimination based on race, color, religion, sex, and national origin. Unlike claims
based upon race, gender, or age where the protected class is easier to identify, the issue of
disability protection begins with the question of who qualifies as being disabled. Historically, this
judicial question has led to controversy. In general, there is a core concept of the term disability
encompassing traditional disabilities. Beyond that, there is little consensus.
An intent of the ADA was to level the job market playing field. However, the legal battles
over the definition of “disabled” clouded the issue to the extent many people seeking workplace
accommodations because of mental or physical difficulties found themselves having to prove they
had a disability. In court, litigation often depended upon the plaintiff demonstrating he or she was
a person with a disability. The Supreme Court’s narrowed approach to the ADA was designed to
eliminate claims from people who were not disabled. However, the result was elimination of a
class of citizens intended to be covered, specifically individuals whose disabilities were
controlled with medication.
The ADA was designed to protect individuals with difficulty coping with the work
environment’s day-to-day stresses. However, court decisions oftentimes seemed to eliminate
those protections. For example, employees perceived as lazy or attempting to gain an unearned
workplace advantage angered employers. Ironically, the judiciary’s strict interpretation of the
term disability demonstrated more sympathy to employer interests than to employee claimants.
35
Several studies documented a low success rate for discrimination complaints filed in federal
court. This lack of success has been attributed to a series of Supreme Court decisions limiting the
ADA’s scope.209 Starting with Sutton v. United Airlines, the Supreme Court generally answered
the question regarding whether an employee was disabled in a restrictive rather than broad
fashion.
Supreme Court ADA Decisions
The following decisions are examples of the Supreme Court’s narrow perspective
regarding whether a person met the ADA’s definition of a disability. These decisions became the
impetus for Congress’ ADA amendments. Starting with Sutton, courts began requiring claimants
to prove they were in fact disabled.
Sutton v. United Airlines, Inc. This case involved twin sisters working as commuter airline
pilots who were denied the opportunity move up the professional ranks to fly commercial planes
for United Airlines. The Sutton sisters both suffered from a vision deficit called myopia and did
not satisfy the airlines qualification standard of having uncorrected vision of 20/100. When
United Airlines rejected them based on their eyesight, the sisters sued arguing their condition
rendered them disabled under the ADA, thereby requiring their employer to provide the
reasonable accommodation of allowing the sisters to wear their corrective lenses while flying.
The sisters further argued if they were not considered disabled under the ADA, their employer
regarded them as disabled because United was treating their eyesight as a substantial limitation.
The sisters had severe myopia resulting in each sister having uncorrected visual acuity of
20/200 or worse in the right eye and 20/400 or worse in the left eye. However, with the use of
36
corrective lenses, each sister had vision of 20/20 or better. This meant without the corrective
lenses neither sister could see well enough to conduct a number of activities such as driving a car
or watching television. However, with glasses or contact lenses, both sisters could function the
same as individuals without similar visual impairments.
In 1992, the sisters applied to United Airlines for employment as commercial airline
pilots. They met the basic requirements for age, education, experience, and FAA certification.
After submitting their applications, both were interviewed and administered flight simulation
tests. During the interview both were told they did not meet the minimum vision requirement.
The interviews were terminated and neither sister was offered a pilot position.
Because United Airlines provided a reason for denying employment, the sisters filed an
ADA disability discrimination claim with the Equal Employment Opportunity Commission
(EEOC). After receiving a “right to sue” letter, the sisters filed suit in the United States District
Court for the District of Colorado, alleging United Airlines discriminated against them based on
their vision disability. More specifically, they alleged the severe myopia was a limiting condition
or alternatively, United Airlines regarded the impairment as limiting, thereby qualifying them as
disabled under the ADA.220
The district court dismissed the complaint because the sisters could fully correct their
visual impairments with glasses. Therefore, they were not substantially limited in any major life
activity and had not proven they were disabled within the meaning of the ADA.221
The Court of Appeals for the Tenth Circuit affirmed the district court’s decision.222 The
Tenth Circuit decision contrasted with other federal appellate court ADA rulings during this
period. The Tenth Circuit ruled self-accommodations should not be considered when determining
37
disability. New York State Bd. of Law Examiners v. Bartlett223 and HCA Health Services of Texas,
Inc. v. Washington224 had ruled some disabilities should be evaluated in their uncorrected state.
All three cases were appealed to the Supreme Court. The Court granted certiorari in Sutton.225
The Supreme Court did not review the statutory framework or guidelines issued by the
EEOC and Department of Justice. Instead, the Court began by considering the question of
whether the sisters had a disability recognized by the ADA. The sisters maintained the Court
should defer to the EEOC and Department of Defense guidelines. These guidelines stated the
field office. The EEOC issues a “Notice-of-Right-to-Sue” letter after completing an
investigation. A lawsuit must be filed within 90 days of the receipt of this letter. 220
Sutton v. United Air lines, 527 U.S. at 476 .
221 Id. at 476-77. 222
Id. at 477.
223 N. Y. State Bd. of Law Exam’r v. Bartlett 527 U.S. 1031 (1999).
224 HCA Health Services of Tex., Inc. v. Washington, 527 U.S. 1032 (1999).
225 Sutton v. United Air lines, 527 U.S. at 477.
38
Id.
Id.
determination of whether the impairment substantially limited a major activity should be made
without regard to mitigating measures.
United Airlines maintained the impairment did not substantially limit a major life activity
if corrected. United Airlines further argued the Court should not defer to the agency guidelines
because the guidelines conflicted with the ADA’s plain language.227
The Supreme Court concluded United Airlines was correct and ruled the approach
adopted by the agency guidelines was an impermissible interpretation of the ADA. According to
the Court, the mitigation measures a person used must be taken into account in determining
whether a person was disabled under the ADA. According to the Supreme Court, the statute’s
wording “substantially limits” was intended to be read according to what actually existed and not
what might or could be substantially limiting if mitigating measures were not taken. The Court
believed the definition required disabilities be determined based upon whether the impairment
substantially limited the major life activities of the individual. Therefore, the ADA’s guidelines
requiring disabilities to be judged in their uncorrected state ran counter to the ADA’s
individualized inquiry. The guidelines required courts and employers to speculate about a
person’s condition and forced them to make a determination based on general information about
how an uncorrected impairment usually affects individuals rather than on the individual’s actual
condition.
The Court noted the use of a corrective device did not by itself relieve one’s disability,
but if the person was still substantially limited even with the use of such device, then the person
met the threshold to be considered disabled. Therefore on the issue of disability, the Supreme
39
Id.
Id.
Court affirmed the court of appeals decision that the sisters did not meet the criteria for having a
disability.
The sisters also argued United Airlines regarded them as having disability. The Court’s
response focused on the two misperceptions an employer could have about an employee. First,
the employer could believe the individual had a substantially limiting impairment that, in fact,
did not exist. Second, the individual was impaired, but the impairment did not substantially limit
the individual despite the employer’s contrary view. The sisters argued United Airlines regarded
individuals who failed to meet the vision requirement as having a disability and excluded those
individuals from eligibility for employment as a pilot. The Court’s response was the individual
must be excluded from either an entire class of jobs or a board range of jobs in various classes in
order to be excluded from work. The inability to perform a particular job did not constitute a
substantial limitation on being able to perform other work.
The sisters failed to show that by establishing a vision requirement, the airlines regarded
them as being substantially limited in the major life activity of working. Therefore, the Court
again upheld the court of appeals’ finding that United Airlines did not regard the sisters as
disabled.235
235
One of the primary issues presented in Sutton was whether the Court should consider
mitigating measures or assess the plaintiff in an unmitigated state when determining whether an
40
Id.
Id.
individual was disabled. Within the ADA’s original language was the question of what impact, if
any, corrective measures such as hearing aids, prosthetic devices, and medication should have on
potentially disabling conditions. The Court observed taking into account mitigating measures
could exclude the very individuals Congress intended to shield with the ADA’s protection. For
example, one of the ADA’s original sponsors Tony Coelho had epilepsy. The effects of this
condition can often be mitigated by medication or by use of a service animal. On the other hand,
the Court worried ignoring mitigating measures would open the courthouse doors to individuals
not generally considered to be disabled. In deciding how to address the mitigating measures
issue, the Court looked at three separate ADA provisions. First, the Court reasoned the phrase
“substantially limit” applied to present time. Therefore, a person whose limitation was corrected
by mitigating measures was not presently substantially limited.242 Next, the Court decided each
case should be decided on an individual basis rather than by considering how a group of people
with that same disability may be affected.243 Finally, in briefs and oral argument, it was
repeatedly emphasized that as many as 100 million Americans used corrective
242
243
41
Id.
Id.
lenses, thus heightening the Court’s concern over the potential for opening the door for these
individuals to be considered disabled.
As a result, the Supreme Court’s concern that undeserving plaintiffs would seek unfair
advantage in the workplace was heightened. The Suttons already had good jobs and their vision
could pose a safety issue to airline passengers if they were allowed to fly commercial airplanes.
Indeed, even if the Suttons had been defined as disabled, they would have probably lost their
claim because the ADA permitted employers to develop rules to ensure safety.247
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams After ruling in Sutton, the
Supreme Court agreed to hear another ADA case in 2002 to again consider whether the
defendant met the definition of disabled. However, once again, the Court applied a narrow view
of the term disability. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams involved the
firing of an employee with a condition not as prevalent as poor vision.
In 1990, Ella Williams began work on the assembly line at a Toyota plant in Georgetown,
Kentucky. Thereafter, she developed pain in her hands, wrists and arms that doctors determined
was carpal tunnel syndrome and tendonitis. Williams’ personal physician placed her on
permanent work restrictions.250 The next two years Williams was assigned to various modified
jobs, but she missed some work for medical reasons and filed a claim under the Kentucky
42
Id.
Id.
250
43
Workers’ Compensation Act. In settling the Workers’ Compensation claim, Williams agreed to
return to work.252 Upon her return, she initially performed inspection work that required no
manual labor. Thereafter manual inspection was added to Williams’ job duties. Subsequently,
Williams experienced pain in her neck and shoulders. She sought care from the plant’s inhouse
physician who diagnosed her with a number of conditions involving inflammation of muscles
and nerves in Williams’ upper body. Williams requested reassignment to a job involving no
manual labor. The parties disagreed about what happened next. According to Williams, Toyota
denied her request and forced her to continue with manual inspections causing her greater injury.
According to Toyota, Williams began missing work on a regular basis.
December 6, 1996 was Williams’ last day at the plant before being placed under a no-work-
ofany-kind restriction by her physicians. On January 27, 1997, citing her poor attendance as the
reason, Toyota terminated Williams’ employment.
Williams filed a charge of disability discrimination with the Equal Employment
Opportunity Commission (EEOC) and thereafter filed suit against Toyota in the United States
District Court for the Eastern District of Kentucky. Her complaint alleged Toyota had violated
the ADA and the Kentucky Civil Rights Act by failing to reasonably accommodate her disability
and terminating her employment. Williams based her ADA disability claim upon the assertion
her physical impairments substantially limited her performance of manual tasks such as
housework, gardening, playing with her children, and lifting. Williams also argued she was
disabled under the ADA because she had a record of a substantially limiting impairment and
because she was regarded as having such impairment.
44
The court found in favor of Toyota stating Williams was not disabled as defined by the
ADA. The court agreed she suffered from a physical impairment, but did not find this
impairment had substantially limited any major life activity. Although the court agreed
performing manual tasks, lifting and working were major life activities, it found insufficient
evidence to substantiate Williams’ claim that these limitations were substantial. The court found
no evidence Williams had a record of a substantially limiting impairment or Toyota regarded her
as having this impairment. The court reasoned even if Williams was disabled at the time of her
termination, her physician had restricted her from any work resulting in her not being a
“qualified individual with a disability.”
Williams appealed. The Court of Appeals for the Sixth Circuit reversed the district court’s
ruling on whether Williams was disabled at the time she sought an accommodation, but affirmed
the rulings on wrongful termination claims. The appellate panel concluded in order for Williams
to demonstrate she was disabled at the time she requested the accommodation of no manual
labor, she had to show her disability restricted her ability to perform manual tasks at work. The
panel believed Williams had satisfied this test because her ailments kept her from doing the work
associated with manual assembly line jobs. The panel disregarded evidence of
Williams’ ability to perform personal hygiene and household chores observing this evidence did
not affect a determination of whether her impairment substantially limited her ability to perform
the manual tasks associated with an assembly line job. Because the court found Williams to be
disabled, it was not necessary to rule on whether she had a record of being disabled or had been
regarded as disabled.
45
The Supreme Court of the United States granted certiorari to consider the proper standard
for assessing whether an individual was substantially limited in performing manual tasks. The
Court determined there were two potential sources of guidance for interpreting the definition:
The Rehabilitation Act regulations and the EEOC regulations interpreting the ADA. Because no
agency had been given the authority to issue regulations interpreting the term “disability” in the
ADA, both parties had accepted the EEOC regulations as reasonable. Thereafter the Supreme
Court saw no reason to rule differently. Accordingly, in order to be disabled under the ADA, an
individual first had to be found to have a physical impairment. Second, the physical impairment
must “substantially limit” a major life activity. The Department of Health, Education, and
Welfare did not define the term “substantially limits;” however, the EEOC created its own
definition. According to the EEOC, “substantially limited” meant “unable to perform a major life
activity that the average person in the general population could perform.” According to the
regulation, a person was considered to be either disabled or not based on the nature and severity
of the impairment, the duration of the impairment, and the permanent or long-term impact
resulting from the impairment.
The question before the Supreme Court was whether the Sixth Circuit properly
determined Williams was disabled under the ADA’s disability definition at the time she sought
the accommodation of removal from manual work. Neither party disputed Williams’ medical
conditions constituted a physical impairment. Rather, the issue focused upon whether the
physical impairment substantially limited Williams from performing the major life activity of
manual tasks. The Supreme Court decided the ADA terms “substantially” and “major” must be
interpreted strictly. Based on the number of people Congress had identified as disabled, the
46
Supreme Court believed it was not Congress’ intent for everyone with a physical impairment to
qualify as disabled. Therefore, the Court decided in order to be substantially limited in
performing manual tasks, an individual must have an impairment that prevented or severely
restricted the individual from doing activities of central importance to most people’s daily lives.
The impairment also had to be either permanent or long-term. The Court believed it was
insufficient for individuals attempting to prove disability status to merely submit evidence of a
medical diagnosis of impairment. Instead, the Court concluded the ADA required evidence
proving the extent of the limitation was substantial and an accompanying case-by-case
determination regarding whether an individual was viewed as disabled.
An individual assessment of the effect of impairment was also necessary in cases where
the symptoms varied widely from person to person. The Court considered evidence on the effects
of carpal tunnel syndrome from muscle atrophy to numbness and tingling and duration from two
weeks to eight years and determined a diagnosis of carpal tunnel syndrome was not enough to
determine whether the individual had a disability within the meaning of the ADA.
The court of appeals had addressed the fact Williams could not perform a “class” of
manual tasks required in her job. The court applied the “class” description the Supreme Court set
forth in Sutton to Williams’ claim. The Supreme Court found the appellate panel had incorrectly
applied Sutton’s term “class” to the manual tasks for a particular job as opposed to the broader
sense the Supreme Court intended where an individual would be excluded from a large “class” of
differing positions. In addition, the court of appeals had not addressed whether Williams was
unable to perform a variety of tasks central to most people’s daily lives as opposed to whether
she was unable to perform the tasks associated with her specific job. The manual task the court
47
of appeals relied upon was the repetitive movement of hands and arms that was part of her
assembly line job and not part of the manual tasks central to the lives of most people. The lower
court had erroneously disregarded the information that Williams could tend to her personal
hygiene and daily household chores. Even though Williams reported she had to avoid or
reduce certain activities, these changes didn’t to amount to such severe restrictions in activities of
central importance to most people’s lives. Therefore, the Supreme Court reversed the
decision of the Court of Appeals of the Sixth Circuit.
The United States district court had initially ruled an individual was not considered
disabled unless the person was limited in performing tasks of “central importance to most
people’s daily lives.” This was a crucial point because the specific tasks unique to a specific job
are not necessarily important parts of most people’s lives. The Court concluded this was
consistent with the intent of the ADA, not to supplant worker compensation or allow individuals
with work-related injuries to seek accommodations in addition to the remedies available under
workers’ compensation.288 In addition, the Supreme Court reasoned a medical diagnosis alone
would not prove disability status; rather disability status must be based on the extent of the
individual’s impairment.
PGA Tour, Inc. v. Casey Martin This case demonstrates the importance of considering the
severity and nature of a disability when determining a reasonable accommodation.
Professional golfer, Casey Martin, a requested the accommodation of using a golf cart during
Professional Golf Association (PGA) tournaments. The PGA believed walking was an essential
48
Id.
Id.
component of the game of golf. Therefore, the PGA denied Martin’s request believing a golf cart
would provide him with a competitive advantage over other golfers.
At birth, Casey Martin was diagnosed with a Klippel-Trenaunay-Weber syndrome, a
degenerative circulatory disorder that obstructed the flow of blood from his right leg to the heart.
The progressive disease caused severe pain and atrophied Martin’s right leg.
Casey Martin had won many tournaments as an amateur, competed on the Stanford
University golf team, and won the 1994 NCAA championship.292 During the latter part of his
college career, due to the progression of the disease, Martin could no longer walk an 18-hole golf
course and the NCAA waived their rules requiring players to walk and carry their own clubs. The
disease caused pain, fatigue, anxiety, in addition to a risk of hemorrhaging, developing blood
clots, and fracturing his tibia so badly an amputation might be required.293 As a professional,
Martin qualified for the Nike Tour in 1998 and 1999 and the PGA Tour in 2000.294
There were various ways a golfer gained entry into a PGA sponsored tournament. Any
player, who won three Nike Tour events in the same year or who finished the year as one of the
top 15 money winners, was admitted into the tournament. Also, a golfer could gain entry by
successfully competing in qualifying rounds the week before the tournament. Most participants,
however, earned playing privileges by qualifying in a three-stage tournament known as
49
Id.
Id.
293
294
Qualifying School (Q-School). Any member of the public may enter a Q-School by paying the
entry fee, in this case, $3000.296
Golf carts were permitted in the first two stages of the Q-School, but prohibited in the
final stage. Three separate sets of rules governed the PGA events. These included the Rules of
Gold jointly written by the United States Golf Association and the Royal and Ancient Golf Club
of Scotland. These rules did not prohibit the use of golf carts. The second set of rules, often
called the hard card, applied specifically to the PGA professional tours.299 The hard card did not
allow a golfer to use a cart during the third stage of Q-School. The third set of rules was issued
for a particular tournament and covered the conditions for that specific event.300 These rules
applied equally to all of the players in tour competitions.301
When Martin turned professional and entered the Q-School, the hard card rules allowed
him to use a cart during his first two stages. He made a request, supported by detailed medical
records, for permission to use a golf cart during the third stage. The PGA Tour refused to review
those records or to waive the walking rule for the third stage. Martin filed a lawsuit.
The U. S. District Court for Oregon entered a preliminary injunction making it possible
for Martin to use a cart in the final stage of the Q-School and on the PGA and Nike Tour.
50
Id.
Id.
300
301
Although not bound by the injunction, the United States Golf Association (USGA) voluntarily
granted Martin a similar waiver in the events it sponsored, including the U.S. Open.
The United States District Court for the District of Oregon ruled Martin’s use of a golf
cart would not fundamentally alter the PGA Tour game. Additionally, the district court entered a
permanent injunction requiring the PGA to allow Martin’s use a cart during the tour and
qualifying events.
The PGA Tour asked the district court to grant a summary judgment claiming exemption
from coverage under Title III of the ADA. According to the PGA, since the tournament was held
at a private club, the only places of public accommodation on the golf course during a
tournament were the spaces open to the spectators. The district court ruled PGA Tour was a
commercial enterprise operating in the entertainment industry for the economic benefit of its
members. Furthermore, the court noted the ADA considered golf courses to be public facilities,
and therefore the PGA could not designate portions of a golf club as being either private or
public. At the trial, the PGA did not contest that Martin had a disability covered by the ADA or
Martin’s claim the disability prevented him from walking the golf course. Instead, PGA officials
argued walking was a substantive rule of the competition and waiving it for any reason would
fundamentally alter the nature of the competition. The purpose of the rule was to inject fatigue
into the shot-making skill, but the court found the level of fatigue walking added was not
significant to most competitors. In addition, Martin presented evidence that even with the use of
51
Id.
the cart he walked over a mile during an 18-hole round of golf, and the fatigue he suffered in
dealing with his disability surpassed the fatigue experienced by his of able-bodied competitors.
He argued categorizing his use of a golf cart as a competitive advantage given the nature and
severity of his disability distorted what was really occurring. The court concluded it did not alter
the nature of the PGA Tour’s game to accommodate Martin by allowing use of a cart.
On appeal to the Ninth Circuit, PGA Tour argued the tournament portions of the golf
course were not public because spectators had no right to enter the areas open only to
contestants. The appellate panel ruled the entire course was considered a public accommodation
even though some portions of the golf course were open to the general public and other areas
were more restricted. Despite the fact the tournament entrants excluded all but the nation’s best
golfers, the golf course was not exempt from being considered a public accommodation just as
the most highly selective universities are not exempt from being considered public
accommodations. The appellate court also found it reasonable to allow Martin to use a golf cart
based on the severity of his disability. The golf cart allowed him access to the competition, and
the evidence supported the district court’s findings of Martin’s inability to walk the course.
Finally, the appellate court denied the PGA Tour claim that using the golf cart gave
Martin an unfair advantage because it would fundamentally alter the nature of the competition
because fatigue was not determined an issue in the other golfers. The Ninth Circuit agreed with
the trial judge’s findings that Martin’s use of a golf cart only granted him access to the golf
tournament as opposed to giving him an unfair advantage over the other contestants.
After granting certiorari, the Supreme Court considered two issues. (1) Whether the ADA
protected a qualified entrant with a disability access to PGA tournaments, and (2) Whether a
52
Id.
disabled contestant could be denied the use of a golf cart because such use would fundamentally
alter the nature of the tournament.
On the first issue, the Supreme Court ruled PGA tournament events fit within Title III of
the ADA, stating these events occurred on golf courses, the type of places specifically designated
by the Act as a public accommodation. As a result, denying Martin access to PGA tournaments
on the basis of his disability was prohibited by the ADA.316
In ruling on the argument of fundamentally altering the nature of the game, the Court
pointed out golf rules did not prohibit the use of golf carts. Even assuming the fatigue factor was
significant and could potentially affect tournament outcomes, the Court found the PGA failed to
consider the nature and severity of Martin’s personal circumstances when deciding whether to
accommodate his disability.318 The Supreme Court pointed out an individualized inquiry was
necessary in order to determine if the nature or severity of a particular person’s disability would
make an accommodation reasonable.
The PGA also argued that any process where they were forced to make individualized
assessments of all qualified participants seeking accommodations due to a disability would be
unduly burdensome and was not required by the ADA. The Supreme Court noted this burden was
acceptable because the ADA did not state the reasonable modification requirement was only
applicable to requests that were easy to evaluate. The decision of the Ninth Circuit Court of
Appeals was affirmed.
The Martin decision considered three questions: 1. Whether the requested modification
was reasonable? 2. Whether the modification was necessary for the individual with a disability?
3. Whether it would fundamentally alter the nature of competition?
53
Americans with Disabilities Act Amendments Act
The ADA Amendments Act of 2008 (ADAAA) was signed into law by President George
W. Bush on September 25, 2008, and became effective on January 1, 2009. The amendments
gained unanimous support in the U.S. Senate and also enjoyed support from business
organizations. The major purpose of the amendments was to expand the reach of the ADA’s
disability definition. This was Congressional response to federal court decisions narrowing
54
the ADA’s disability protections. The amendments came after five years of deliberations and were
an attempt to override several Supreme Court rulings limiting the statute’s coverage.
The text of the amendments reflected Congress’ disappointment with the Supreme
Court’s narrow interpretation of what qualified as a disability. Congress intended for the
Rehabilitation Act of 1973’s broad interpretation of the definition of a disability to be extended to
the ADA. The amendments were designed to explicitly reinstate a broader scope of protections.
The five major changes to the ADA applied to all of the titles as well as Title V of the
Rehabilitation Act of 1973, which included §501 covering federal employment, §503 covering
federal contractors, and §504 covering recipients of federal financial assistance and services and
programs of federal agencies. The ADAAA represented progress from a claimant’s point of view.
Change One – Clarifying the Disability Definition
While the ADAAA did not change the three-part definition of a disability, it did clarify the
terms used to define a disability to allow broader application. As a reminder, this three-part
definition provides an individual must have “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual;” “(B) a record of
such an impairment;” “(C) be regarded as having such an impairment.”
Major life activities were defined as the basic activities the majority of the general public
could perform. The revised statute incorporated the activities set forth in the EEOC regulations
and appendix. A list of major life activities was added to the Act including:
…But are not limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working.
55
In addition, major bodily functions were added as major life activities, “including but not
limited to functions of the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
The most significant major life activity expressly addressed by the amendments was
“working.” Previously, there was question as to whether working should be considered a major
life activity. The Supreme Court left the question unanswered in Sutton. The inclusion of working
as a major life activity was designed to clarify the ambiguity in both the original statute and case
law. Congress wanted to shift the focus from whether an individual was covered by the statute to
whether the employer discriminated against an individual with a disability. Change Two –
Episodic Impairments
The second amendment added “an impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when active.” For example, epilepsy,
hypertension, multiple sclerosis, asthma, diabetes, and bipolar disorder are all episodic
impairments that can be considered disabilities.
Change Three- Mitigating Measures
Amendment three stated, “The determination of whether an impairment substantially
limits a major life activity shall be made without regard to the ameliorative effects of mitigating
measures.” Mitigating measures are designed to eliminate or reduce the impact or symptoms of
impairment. The ADAAA provided a long list of examples of mitigating measures including
56
medication, medical equipment, prosthetic limbs, hearing devices and cochlear implants,
reasonable accommodations, and behavioral modifications. Eyeglasses or contact lenses were
excluded from this list. This change was designed to reduce the inordinate amount of time and
energy courts were allocating to evaluating evidence “…In order to determine whether, and to
what extent, mitigating measures actually alleviate the effects of the disability-none of which is
relevant to the questions of whether discrimination occurred.” Change Four- A Broader Reading
of Substantial Limitation
The fourth amendment provided, “An impairment that substantially limits one major life
activity need not limit other major life activities in order to be considered a disability.”349 This
change addressed Congressional concerns over the Supreme Court’s interpretation of substantial
limitation in Toyota v. Williams to mean prevent or severely limit.350 The new language reflected
an intent for a broad reading of the phrase and rejected the narrow approach used by the Supreme
Court and the EEOC’s interpretation of “substantially limited” to mean “significantly
restricted.”351
Change Five-Regarded as Disabled
Amendment five significantly changed the meaning of “regarded as disabled.”352 The
ADAAA eliminated the requirement for an employer to perceive the impairment as substantially
limiting. The plaintiff only needed to demonstrate that he or she had been discriminated against
because of the perceived or actual impairment without regard to whether the impairment was
perceived as substantially limiting.353
57
H.R. 3195, the “ADA Restoration Act of 2007,” Hearing, October 4, 2007. Available at:
http://dredf.org/wp-content/uploads/2012/11/Collins_ADA_Restoration_Testimony.pdf (last
accessed 02/16/2015).
349 ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a)(4)(C), 122 Stat. 3553 (2008).
350 Collins, Michael. Statement to the U.S. House of Representatives, the Committee on the
Judiciary, the Subcommittee on the Constitution, Civil Rights, and Civil Liberties. Hearing
on H.R. 3195, the “ADA Restoration Act of 2007,” Hearing, October 4, 2007. Available at:
http://dredf.org/wp-content/uploads/2012/11/Collins_ADA_Restoration_Testimony.pdf (last
accessed 02/16/2015).
351 Seiner, supra note 323, at 111-12.
352 Americans with Disabilities Act, 42 U.S.C. § 12102(2)(B) (2006).
353 ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a)(3)(A), 122 Stat. 3553 (2008).
Beginning with Sutton, the Supreme Court began to interpret the definition of disability
more narrowly. This shift favored business. Employers faced changes with the passage of the
Americans with Disabilities Act Amendments Act. Almost immediately, the ADA again became a
plaintiff-friendly statute due to the fact the federal law expanded the definition of disability.
Passage of the ADAAA reclaimed the original intent of the ADA.
Celeste v. East Meadow Union Free School District
In Celeste v. East Meadow, the parents alleged the public school violated the ADA and
discriminated against their child based on his disability. Domenick Celeste Jr. was a student with
cerebral palsy who attended Woodland Middle School in the East Meadow Union Free School
District in New York. Domenick used either crutches or a wheelchair to navigate the school
building and grounds. Domenick alleged the school’s architectural barriers forced him to take a
ten-minute detour each way to reach and return from the athletic fields behind the school. This
20-minute delay reduced his participation time in the forty-five minute physical education class
and also limited his participation as a manager for the football team. In addition, he could not
58
access the bus depot at the school and was forced to disembark from the school bus at a location
different from other students.
Domenick’s father filed a complaint on behalf of his son with the United States District
Court for the Eastern District of New York alleging violations of the American with Disabilities
Act and §504 of the Rehabilitation Act of 1973. A jury found the barriers to the athletic fields
resulted in the school district being liable under Title II of the ADA and §504 and awarded
monetary damages for Domenick’s emotional distress. However, the jury found in favor of the
school district regarding the bus depot access question.
School officials appealed the decision to the United States Court of Appeals for the
Second Circuit. On appeal, school officials argued the district court abused its discretion because
Domenick failed to introduce any objective expert testimony and failed to suggest any plausible
accommodations. Because of these errors, school officials argued Domenick’s claim should have
failed as a matter of law. The appellate panel noted Domenick had testified before the jury about
the amount of time it took him to travel to the athletic fields. This testimony allowed the district
court to rule without conjecture as to whether Domenick had been denied meaningful access.
Additionally, school officials had not offered a compelling reason as to why
Domenick would need to present an expert witness.
The appellate court also ruled Domenick met the burden of showing the cost of the
requested accommodations would not exceed the benefits. Domenick recommended the
installation of additional curb cuts and the removal of fixed cleat cleaners because the school had
portable ones they could place near the locker room. The court concluded these suggestions met
59
the burden of providing a reasonable accommodation. Therefore, the court affirmed the lower
court’s ruling.
East Meadow school officials also claimed the district court erred in refusing to vacate the
jury’s damage award. The court of appeals concurred. Domenick had not presented evidence
showing the limited access to the athletic fields caused him undue emotional distress.
Finally, Domenick’s father cross-appealed the decision regarding the bus depot stating the
district court failed to consider the additional ADA standards applicable to facilities constructed
after January 26, 1992. The bus shelter lacked a curb cut on the side where buses picked up and
dropped off students. Therefore, a disabled student who required sidewalk access had no safe way
to travel. The appellate court viewed these deficiencies as violations of the
ADA’s accessibility expectations. The panel found the bus shelter violated the ADA. With respect
to the sidewalk, school officials argued the school district did not own the property and therefore
was not liable for the lack of access. However, the school district’s witness stated the district
maintained the sidewalk. The panel concluded the claims regarding the sidewalk did not fall
under Title II of the ADA, rather constituted a Title III claim. This conclusion prompted a remand
of the case. There was no further information regarding the remanded findings.
Social Model of Disability
The social model of disability regards the views of society as a contributing factor to
60
“disabling” a person with impairment much the same way other marginalized members of society
have been limited by views on race or ethnicity. According to this model, physical or mental
conditions do not by themselves disable; instead, the disability arises from a dynamic between a
condition and the environment. A common example of the social model is a person who uses a
wheelchair for mobility. This person might not be considered disabled were it not for the physical
barriers of curbs and steps. However, even the removal of physical barriers would not allow the
individual full participation in society if the negative and exclusionary attitudes of others kept the
person from tasks he could perform.
Reasonable Accommodations
A reasonable accommodation is a common-sense solution to an accommodation request.
The basic reasonable accommodation query under the ADA and Rehabilitation Act is the same. A
reasonable accommodation is intended to enable persons with a disability to participate in work,
education, or public life to the same extent as their nondisabled counterparts. The range of
possible accommodations is only limited by imagination.
61
Every accommodation request should be decided on an individual basis. An agency faced
with deciding how to accommodate should ask the individual how he or she would like to be
accommodated. Not all of these requests will be reasonable. If the accommodation is not
reasonable, it is not the required solution. However, the government agency still must provide
access wherever a reasonable accommodation is possible. For example, it may not be reasonable
for a library to provide a book in Braille as opposed to an audio file to an individual who is blind
due to the high cost of translating the book to Braille. The individual still has access to the book
even though it was not the requested accommodation.
The courts have applied a four-prong test to judge reasonable accommodation claims.
The test asks the following questions. First, is the plaintiff disabled? Second, did the defendant
know of the disability? Third, did the plaintiff make a request for a reasonable accommodation
needed to give the plaintiff an equal opportunity to use and enjoy the service, facility, or
program? Finally, did the defendant deny this request? According to the courts, an
accommodation may be considered “necessary” under prong three when it is shown the plaintiff
requires the requested accommodation. Usually the defendant argues against the
“reasonableness” because the accommodation either creates an undue financial burden or would
fundamentally alter the nature of the service or program provided.381 The courts disagree as to
whether the burden of proof regarding “reasonableness” lies with the plaintiff or if the defendant
must prove undue burden or fundamental alteration.382
Just as it is not illegal to discriminate against a member of a protected class for a reason
unrelated to the protected status, the ADA does not require an organization to provide
accommodations not directly related to a person’s disability. The ADA Amendments Act of 2008
62
Id.
remained silent on whether the accommodation must be directly related to the disability. In
addition, the Supreme Court has never addressed the issue of whether the accommodation must
demonstrate a nexus to the disability, thereby leaving these decisions to individual discretion and
judicial interpretation.
Modification of Policies and Procedures
The ADA’s language provided “no individual with a disability be excluded, denied
services, segregated or otherwise treated differently… unless the entity can demonstrate that
taking such steps would fundamentally alter the nature of the… services… or would result in an
undue burden.” This statutory language identified the two exemptions for accommodations,
undue burden and the fundamental alteration of the nature of the service.
Sometimes the accommodation request requires modifications to policies or procedure in
order for a person with a disability to have an equal opportunity. An example is allowing a
disabled person extended time on a standardized test. The agency administering the test has a
right to request documentation of the need for this accommodation. Once this verification is
provided, the agency must modify its testing procedures and policies to allow the individual an
equal opportunity under the ADA. This does not mean that an agency must waive all of its
procedures and policies. Safety concerns trump equal opportunity. If an accommodation request
necessitates unreasonable alteration of policy or procedures, steps should be taken to maximize
accessibility while maintaining practicality.
An example of policy and procedural change is granting access to an individual’s service
dog to a facility with a “no dogs allowed” policy. The service dog has the same ADA protection
63
as a tool or piece of equipment such as a wheelchair. The exception would be a place where the
presence of a dog poses a safety risk.
The question becomes whether the requested accommodation is reasonable and whether
the requested accommodation would create a fundamental alteration in the nature of services the
school provides. Unreasonableness of accommodation is difficult to question in the public
school setting because schools provide the setting for the major life activity of learning to many
different types of students with different abilities and limitations. For school officials to say
accommodating a student’s individual abilities or disabilities is “burdensome or an alteration of
policy” is in contrast with the widely accepted belief that each student has different learning
needs.393
At some point the financial and administrative burden on school officials to provide
individualized accommodations to each student under §504 or the ADA could outweigh the
393
actual benefit the individual student receives. Financially and administratively, school officials
struggle to find the resources to accommodate the variety and multitude of disabilities under
§504 and the ADA.
Individuals with Disabilities Education Act
64
Id.
The third federal statute governing the duty of public school officials to provide a child
with a disability the use of a service animal is the Individuals with Disabilities Education Act of
2004 (IDEA). The IDEA is an important legal tool ensuring children with disabilities are
provided access to a meaningful education. Under the IDEA and its implementing regulations,
the federal government provides states some financial assistance for the provision of special
education and related services to children with disabilities.
History of the IDEA
After the Civil War, many communities began adopting polices regarding compulsory
education; however, there were no provisions for educating students with disabilities. During the
Progressive Era of the late nineteenth and early twentieth century, some cities, such as
Chicago, Boston, and Providence, provided special classes for children with cognitive
disabilities. In 1911, New Jersey became the first state to provide special education classes. In
the 1920s, while classrooms for students with cognitive disabilities became more common than
in the past, there were still students considered to be uneducable who were excluded from public
schooling. Decisions about whether to include or exclude students from public schools were
typically based on intelligence tests.
Public schools did not just exclude students with disabilities. It was also common to see
schools segregated by race with white students attending schools with many more resources than
their black neighbors. The 1954 Supreme Court decision in Brown redefined public education in
communities and states across the nation by requiring schools to allow students of all races to be
educated together.
65
The Supreme Court landmark civil rights decision not only opened the school doors to
black students but also gave parents of students with disabilities hope their children would also
receive educational opportunities in the public schools. In Brown the Supreme Court addressed
the question of whether black students could be excluded from publicly funded school that had
traditionally served only white students. The plaintiffs believed segregation of black students
violated the students’ right to equal protection under the U.S. Constitution’s Fourteenth
Amendment. The Court unanimously ruled segregation based upon race deprived minority
66
Id.
children equal educational opportunities. The Court held public school segregation based upon
race violated the Fourteenth Amendment’s equal protection clause.
However, change for students with disabilities came slowly. Many states continued to
exclude students with disabilities, and inappropriate programs often served those students who
were included. The need to assist states in funding educational programs for the disabled was
initially addressed in Title VI of the Elementary and Secondary Education Act of 1965
(ESEA) which provided the first federal grant program for special education services. In
April 1970, Congress again amended the ESEA and renamed Title VI the Education of the
Handicapped Act (EHA). The EHA created incentives encouraging states to develop educational
programs to benefit students with disabilities. Part B of the EHA was designed to help states in
either beginning special education programs or improving and expanding existing programs, but
it did not specify how states were to spend their federal funds. Without specific mandates, the
EHA did not significantly improve conditions for students with disabilities.
Parents of the disabled began to push their respective states to address this problem.
Some states passed laws providing partial funding and required school boards to offer special
educations services to children with disabilities. However, many of these laws were not enforced
and the earmarked funds proved to be insufficient.
Because of this unresponsiveness, parents sought relief in federal courts. Two landmark
cases provided the legislative impetus for what would eventually become the
Individuals with Disabilities Education Act.
67
Id.
Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania On January 7,
1971, the parents of thirteen mentally disabled children filed a civil rights class action lawsuit
alleging certain Pennsylvania statues and practices denied due process and equal protection
rights guaranteed by the Fourteenth Amendment of the U.S. Constitution to children challenged
by mental retardation.422 According to the complaint, Pennsylvania officials relied upon four
state statutes to exclude children with cognitive disabilities from attending public schools.
The first statute relieved the state board of education from any obligation to educate a
child whom a public school psychologist certified to be uneducable. The burden of caring for
such child was shifted to the Department of Welfare, an agency with no obligation to provide any
educational services for the child. The second state statute allowed public school officials to
indefinitely postpone admission of any child who had not attained a mental age of five. The third
statute excused any child from compulsory school attendance whom a psychologist found unable
to benefit from education. Finally, the fourth statute defined compulsory school age, but in the
case of students with cognitive disabilities, the statute was used to either postpose admission
until age eight or the student remove from school at age 17.
A hearing date was set for June 15, 1971, however, the parties asked for an opportunity to
settle the case amicably with regard to the due process portion of the complaint. The hearing date
was postponed until August 12, 1971.424 During this interim, the parties reached a stipulated
agreement. The District Court for the Eastern District of Pennsylvania approved the agreement,
which guaranteed a hearing with a special hearing officer for any child who was cognitively
impaired or thought to be cognitively impaired before determining the child’s eligibility as either
a regular or special education student or before excluding the child from a public education. At
68
Id.
the hearing, parents had the right to representation by counsel, to examine the child’s records, to
compel the attendance of school officials who might have relevant evidence to offer, to cross
examine witnesses testifying on behalf of the school, and to introduce evidence of their own.
In mid-August the court heard PARC’s evidence regarding the equal protection claims.
Following testimony by educational experts, the parties expressed a desire to also settle the equal
protection dispute by agreement rather than judicial determination.
On October 7, 1971, the parties signed a consent agreement that included the following
provisions. The complaint was considered a class action on behalf of all cognitively disabled
residents of Pennsylvania, who had been or might be denied access to free public education and
training while they were less than twenty-one years of age. Immediate relief was granted to the
entire class. Notice was sent to public school districts, and advertisements sent to newspapers in
each county. The state recognized children with cognitive difficulties could benefit from
education and training. Pennsylvania agreed to provide a free public education to all exceptional
children between the ages of six and twenty-one and not deny any cognitively impaired child
access to a free public program. State officials acknowledged placement in a regular public
school class was preferable to placement in a special public class and placement in a special class
was preferable to placement in any other type of program. The agreement made adjustments to
certain sections of the school code precluding public school districts from barring students with
disabilities from attending school. In school districts where preschool was offered, the agreement
ensured programs designed to include children with disabilities below the age of six would also
be offered. Tuition for day schools and residential schools became available for students
69
Id.
considered cognitively impaired. However, if a school district provided a program of special
education appropriate for the child, the district could deny or withdraw payments of tuition.
Cognitively impaired students would be eligible for homebound instruction and training for at
least five hours per week. However, the agreement recognized homebound instruction was the
least preferable program of education and training. The Department of Welfare was required to
abide by the same guidelines as public school districts for children who were a part of its system.
Deadlines were established for when the agreement would be in effect.431 The district court
approved the agreement and thereby avoided the constitutional question regarding the Fourteenth
Amendment.
After numerous notices to the Pennsylvania public school districts, a hearing was held on
December 15 and 16, 1971, to hear objections for the proposed settlement agreements. The
complaints referenced the burdensome and impractical nature of the stipulations’ due process
hearings. In addition, some challenged the district court’s jurisdiction over this case.
Proponents of the settlement met with the objectors and modified the consent agreement
and the stipulation in order to satisfy everyone involved. On May 5, 1972, the court approved the
amended stipulation. The PARC decision and stipulated agreement contained language that
would later be used as IDEA’s free appropriate public education (FAPE) and least restrictive
environment (LRE) provisions. While the Pennsylvania federal district court was hearing
PARC, a similar class action lawsuit was filed in the U. S. District Court for the District of
Columbia against the Board of Education of the District of Columbia.
Mills v. Board of Education This lawsuit claimed school officials were denying poor
minority students with mental impairments and behavior problems a free public education. The
70
Id.
complaint alleged D.C. public school officials were failing to provide a public education to these
children with disabilities and other “exceptional” children. The class action lawsuit also
addressed the exclusion, suspension, expulsion, and transfer of “exceptional” children from
regular public school classes without a due process hearing. The school board admitted they were
obligated to provide this population of children an education including periodic review and the
right to a due process hearing prior to changing a student’s educational placement.
Furthermore, school officials admitted they had failed to meet this obligation.
In December 1971, the parties agreed and signed a stipulation ordering school officials to
provide a list of the students in the D.C. area who might be considered “exceptional.” In
addition, school officials agreed to develop an action plan for evaluating and placing students
with disabilities in public education programs.439 The District of Columbia School Board made
attempts to fulfill theses obligations but failed and on April 7, 1972, submitted documents the
court did not find satisfactory. Citing Brown v. the Board of Education, the district court rejected
the Board of Education’s argument claiming insufficient funding as an excuse for not fulfilling
their obligations to students challenged by disabilities. The court stated,
“Constitutional rights must be afforded citizens despite the greater expense involved.” The
district court ordered no child eligible for public education would be excluded unless the child
was provided an adequate alternative education. The court further directed school officials to
adopt a written policy guaranteeing extensive due process hearing procedures to children prior to
a suspending them from school for disciplinary reasons.
71
Both the PARC and Mills decisions prompted Congress to pass legislation enforcing the
rights of the students with disabilities to receive a free appropriate public education. Two years
after the passage of the Rehabilitation Act of 1973, Congress authorized the Education for All
Handicapped Children Act of 1975 (EAHCA) under its Spending Clause powers. Former Senator
Robert Stafford and Senator Edward Kennedy were the original co-sponsors of this Act. At that
time, the Bureau of Education for the Handicapped estimated only 3.9 out of eight million
children with disabilities birth to age twenty-one were receiving an appropriate education. The
agency further estimated 2.5 million children were receiving an inappropriate education and 1.75
million disabled children were not receiving any educational services.
The purpose of the EAHCA was to provide students with disabilities a meaningful
education by requiring states who accepted the Act’s federal funding to provide special education
to all students with disabilities.450 It established the requirement for states and school boards
receiving these special education funds to provide a free and appropriate public education to a
student with a disability in the least restrictive environment. In Smith v. Robinson the Supreme
Court described the EAHCA as a “comprehensive scheme set up by Congress to aid the States in
complying with their constitutional obligations to provide public education for handicapped
children.”453 There were four purposes listed within the Act for children with disabilities.
[1] A free appropriate public education which emphasizes special education and related
services designed to meet their unique needs, [2] to assure that the rights of handicapped
children and their parents or guardians are protected, [3] to assist States and localities to
provide for the education of all handicapped children, and [4] to assess and assure the
effectiveness of efforts to educate handicapped children. (numbering added)454
The EAHCA contained five major sections tangentially affecting service animals. First the
Act required provision of a free and appropriate education (FAPE) to all students with disabilities
72
between the ages of three and twenty-one.455A “free appropriate public education” (FAPE) was
defined in the Act as:
Special education and related services which (A) have been provided at public expense,
under public supervision and direction, and without charge, (B) meet the standards of the
State educational agency, (C) include an appropriate preschool, elementary, or secondary
school education in the State involved, and (D) are provided in conformity with the
individualized education program….456
Secondly, the Act called for a nondiscriminatory evaluation using “a variety of assessment
tools and strategies to gather relevant functional, developmental, and academic information about
the child, including information provided by the parent”457 to determine
§504 of the Rehabilitation Act because the plaintiff may not enlarge upon the remedies offered by
the EHC.
453 Smith v. Robinson, 468 U.S. at 1009.
454 Education for All Handicapped Children Act, Pub. L. No. 94-142, 89 Stat. 773 (1975).
455 Id. at § 612(2)(B).
456 Id. at § 602(a)(18).
457 34 C.F.R. §300.304 (2012).
whether the child is eligible to receive special education and related services. Additionally, a
student had to be evaluated in his or her native language using racially and culturally unbiased
instruments. The list of disability categories that qualified a student for special education were
mental retardation, speech or language impairments, visual impairments including blindness,
serious emotional disturbance, hearing impairments, orthopedic impairment, other health
impairment and specific learning disabilities.
Third, the EAHCA mandated each public school district create, review, and revise an
Individualized Education Program (IEP) for each eligible student. The IEP was described as a
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written statement developed during a meeting attended by a representative of the local
educational agency who was qualified to supervise the specially designed instruction, the child’s
teacher, the parents/guardians, and whenever appropriate the child. The IEP was to include a
statement of the present levels of educational performance, annual goals and objectives, the
educational services to be provided, the extent to which the child was to participate in regular
education, the projected dates for initiation and duration of the IEP, and criteria for determining
whether the objectives are achieved.
Fourth, the EAHCA called for the State to establish procedures to assure students with
disabilities were educated with their non-disabled peers. This provision is now commonly known
as the “least restrictive environment” (LRE) mandate:
…To assure that, to the maximum extent appropriate, handicapped children … are
educated with children who are not handicapped and that special classes, separate
schooling, or other removal of handicapped children from the regular educational
environment occurs only when the nature or severity of the handicap is such that
education in regular classes with the use of supplementary aids and services cannot
be achieved satisfactorily….
Restrictiveness is thereby defined as the degree a student with a disability interacts with students
who do not have a disability.
Finally, the Act provided for procedural due process. If a parent believed the EAHCA was
not being followed, the State was required to hear evidence to ensure the Act’s requirements were
being met. The Congressional subcommittee developing this Act debated what an adequate due
process procedure should involve. The intent was to guarantee the proceedings would remain as
informal as possible prior parties filing suit in court. Congress believed an informal process with
administrative hearings would not develop into a prolonged adversarial confrontation between the
parents and schools. Congress sought a balance between an informal opportunity to work out a
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sound agreement regarding the appropriate education program for the child and a complete
remedy including court review. The Act described the shared decision-making between parents
and the school on issues related to educational programing.
On December 2, 1975, upon signing the EAHCA, President Gerald Ford stated while he
approved the Act’s intentions, he believed the Act promised more than the federal government
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Id.
could deliver. He questioned if the law would accomplish its objective of educating the
handicapped and asserted the law’s proposed funding levels would be difficult to meet. President
Ford found several sections of the law to be objectionable including the complex costly
administrative requirements that inserted federal controls over local operations. He also objected
to the use of taxpayers’ funds for administrative paperwork instead of educational programs.
The EAHCA required all states accepting the Act’s federal funding not deny any child an
education as the result of a disability. None of the Act’s subsequent amendments changed the
three original requirements the federal government imposed upon states in order to be eligible for
federal funds. First, children with disabilities must have an Individualized Education Program
(IEP). Second, public school officials must provide students with disabilities a free appropriate
public education (FAPE). Third, this education must be provided to the child in the least
restrictive environment (LRE)..
Board of Education v. Rowley In 1982, the U.S. Supreme Court provided guidance on the
EAHCA’s FAPE requirement. Amy Rowley, a deaf student and excellent lip-reader, attended
regular kindergarten in Hendrick Hudson Central School District in Peekskill, NY, as agreed by
her parents and school officials.474 Amy used an FM hearing aid to amplify words spoken into a
wireless receiver by her teacher or fellow students. In addition, a teletype machine was installed
in the principal’s office to facilitate communication with Amy’s parents who were also deaf.
Members of Amy’s special education team were provided instruction in sign language. Amy was
also provided a two-week trial with a sign language interpreter during her kindergarten year. The
interpreter reported Amy did not need his services at that time.
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Id.
In preparing for first grade, it was determined Amy should continue to be educated in a
regular classroom, use the FM hearing aid, receive instruction from a tutor for the deaf one hour
each day, and instruction from a speech therapist for three hours each week. The Rowleys also
wanted Amy to be provided a qualified sign-language interpreter in all of her academic classes.
After consulting with Amy’s parents, the classroom teacher, others familiar with her academic
and social progress, and an observation in a class for the deaf; school administrators concluded
Amy did not need an interpreter.
When their request was denied, the parents requested a hearing before an independent
examiner. The examiner agreed with school officials and ruled the interpreter was not necessary
because Amy was successful without this assistance. The New York Commissioner of Education
affirmed the decision upon appeal. The Rowleys appealed to the United States District Court for
the Southern District of New York claiming the denial of the sign-language interpreter
constituted denial of a FAPE.482
482
The district court found, while Amy performed better than the average child in her class,
she understood less than she would have if she were not deaf. This disparity between Amy’s
77
Id.
achievement and her potential led the district court to conclude she was not receiving a free
appropriate public education.
The United States Court of Appeals for the Second Circuit affirmed this decision
although the panel was divided. The Supreme Court granted certiorari and ruled the United
States District Court of the Southern District of New York and the United States Court of
Appeals for the Second Circuit were mistaken when they ruled the EAHCA required schools to
maximize the potential of each disabled student commensurate with his or her non-disabled
peers. The Supreme Court devised a two-part test to use for determining whether school officials
had complied with IDEA’s FAPE requirement. The Court’s inquiry specified (1) if the procedural
safeguards had been fulfilled, then the court’s role was to ascertain (2) whether the IEP was
“reasonably calculated to enable the child to receive educational benefits.”
The Court reversed the decision of the court of appeals and determined Amy received a
FAPE without the sign-language interpreter because she was well adjusted and successful
academically. The Court concluded school officials were not obligated to maximize the potential
of students receiving special education services; but instead were only obligated to provide
“personalized instruction … with sufficient supportive services to permit the child to
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benefit from the instruction.” The Court observed the IDEA’s intent “was more to open the door
of public education to handicapped children on appropriate terms than to guarantee any
particular level of education once inside.” Rowley introduced the phrase “basic floor of
opportunity” as applied to the special education services.
After Rowley, lower courts struggled to determine how much educational benefit would
be enough to provide an eligible child with some educational.
Amendments to the EAHCA
The original EAHCA has been amended four times since its passage. The first
amendment, Handicapped Children’s Protection Act of 1986, allowed parents to be reimbursed
for attorney fees in special education disputes with school officials where they were the
prevailing party. This award was extended not only to cases that went to court but also for cases
decided at the administrative hearing level. Several congressmen voiced concerns about
extending the reimbursement to the hearing level. The tenor of this concern was reflected by
Vermont Senator Jim Jeffords’s comment, “I am convinced that we will be reversing our original
intent and interfering with a procedure that is working. Instead of informality and cooperation,
the process will become formal and adversarial.” Mr. Bartlett compared having lawyers’ fees
recovered at the administrative hearing level to a “… fruit tree growing in a lawyers’ garden.”
There were 2,262 due process hearings in the school year 2011-12 with education officials
reporting, “…hearings can be protracted, adversarial and costly.”
The Education for All Handicapped Children Act was reauthorized as the Individuals
with Disabilities Education Act of 1990. Mandates regarding a FAPE and LRE were basically
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unaffected by this reauthorization. All references to “handicapped children” were replaced with
the term “children with disabilities.” The IDEA added autism and traumatic brain injury to the
original list of eight disabilities that qualified a student to receive special education supports and
services.
In 1997, the Individuals with Disabilities Education Act was again amended and
reauthorized with more substantial changes. A few of these changes tangentially relate to service
animals.
First, the term related service was further defined as;
Transportation, and such developmental, corrective, and other supportive services
(including speech-language pathology, occupational therapy, recreation, including
therapeutic recreation, social work services, counseling services, including rehabilitation
counseling, orientation and mobility services, and medical services, (except that such
medical services shall be for diagnostic and evaluation purposes only) as may be required
to assist a child with a disability to benefit from special education.
The 1997 amendments also established the IEP as the primary tool for enhancing a child’s
progress and involvement in the general curriculum. These changes required school officials to
include language in various parts of the IEP document specifically addressing the child’s
progress in general education curriculum. The 1997 IDEA amendments, for the first time,
established high expectations for children with disabilities to achieve real educational results.
On June 4, 1997, President Clinton signed the Individual with Disabilities Act of 1997 into law.
The 108th Congress completed another reauthorization of IDEA. On December 3, 2004,
President George W. Bush signed into law the reauthorization of the as the Individuals with
Disabilities Education Improvement Act of 2004, sometimes referred to as IDEA 2004. These
updates coincided with new understandings regarding disabilities and best practices. Most of
these changes do not relate to the use of service animals within the public schools. However,
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they evinced Congress’ desire to continue to increase the access of special education students to
meaningful education with a focus on opportunities to access and benefit from general education
and improved special education programing.
Autism
As of 2004, IDEA recognized a total of 13 disability categories. One of these disability
categories was autism spectrum disorder (ASD). The importance of highlighting autism as a
growing disability category is there is an increased use of service animals for students with
autism. Due to the nature of autism, many children challenged by this disability are not able to
effectively serve as handlers for their service dogs.
ASD is defined by certain behaviors appearing in any combination and with any degree
of severity. Autism is a complex developmental disorder with no known cause, cure, or medical
treatment for its symptoms. Research shows all children with autism demonstrate some degree of
impairment in their social interactions, verbal and nonverbal communication skills, and interests
or behaviors. Symptoms can include resistance to change, impairments in social interactions,
communication impairments, restrictive interests, and repetitive behaviors. Many children with
autism are socially withdrawn, lack appropriate social skills and exhibit detachment from their
social environments. In addition, many children with autism engage in some form of repetitive
behaviors such as rocking or twirling and self-injurious behaviors such as biting or head banging.
Oftentimes children with autism also have medical issues including sensitivity to light and noise
or seizures. One of the many difficulties in helping students with autism is the wide variety and
severity of ways it can affect an individual.
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Research supports the most effective way to address the symptoms associated with
autism is through educational and behavioral therapies to provide structure, routine and
communication skills. Ninety percent of children with autism exhibit some type of behavior
difficulty including the inability to regulate emotions, interpret social cues, and develop age
appropriate communication skills.
Some advocates argue autism is not a disorder but rather an alternative wiring of the
brain. This neurodiversity philosophy believes individuals with autism are not broken and do not
require fixing.
According to a 2007 report by the United States Center for Disease Control and
Prevention (CDC), 6.6 of every 1,000 eight year olds has a diagnosis of autism. Public concern
has increased as the number of children diagnosed with autism continues to grow each year. In
2009, the CDC reported autism affects one in eighty-eight U.S. born children and one in fifty-
four males.
Public awareness has grown as autism rates rise, and the provision of therapeutic services
for children with autism spectrum disorders (ASD) has become a significant societal issue. ASD
imposes enormous financial and personal burdens on families and society as a whole. As parents
struggle to obtain costly therapies they believe represent the child’s only hope for a normal life,
they turn to both school and insurance companies for support. Conflict is common between
school officials and parents of an autistic child over necessary and appropriate treatments. The
Special Education Expenditure Project estimated the cost for educating a child with autism in the
year 2000 to be almost three times the cost of educating a non-disabled student. The high cost of
treatments for students with autism may lead school officials to reject a program as unnecessary.
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The parents, on the other hand, argue the treatment is appropriate to address the child’s needs. In
the last decade there have been 700 federal court cases involving autism and special education.
IDEA Related Service Court Cases
Rarely do parties spend the time and resources to litigate because they desire the same
outcome. However, in special education law both parents and school officials strive to provide
the child with a disability an appropriate education. Often litigation arises from disagreements
over the appropriate methods for achieving this outcome.
The meaning of a FAPE and LRE are terms not always agreed upon by the courts.
Generally the courts consider whether the procedural requirements for developing the IEP have
been met, whether the IEP sets forth reasonable and attainable goals including aids, supports, and
services, if the IEP was properly implemented in the classroom, and if parents were involved in
the IEP’s creation.
As a part of providing a FAPE, school officials must provide the related services required
for a student with a disability to benefit from special education. The definition found in the
IDEA’s text includes a list of items considered to be related services. It has not been clear
whether this list is exhaustive or not. The following cases address individual services not
specifically listed in IDEA and considers whether these are related services.
Irving Independent School District v. Tatro. The first Supreme Court decision interpreting
the IDEA’s related service expectations involved the question of whether school officials were
required to provide catherization to a child with a disability. Amber Tatro was born with spina
bifida. As a result, she suffered from orthopedic and speech impairments and a condition
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preventing her from emptying her bladder voluntarily. This bladder condition required her to be
catheterized every three to four hours to avoid injuring her kidneys. Clean intermittent
catheterization (CIC) is a procedure involving inserting a catheter into the urethra to drain the
bladder. It can be performed in a few minutes by a layperson with less than one hour’s training.
In 1979, when Amber was three and a half, the Irving Independent School District in
consultation with Amber’s parents created an individualized education program (IEP) for Amber
as required by the Education for All Handicapped Children Act of 1975. This IEP enabled Amber
to attend early childhood classes and receive special services such as physical and occupational
therapy. The IEP did not contain a provision for the school staff to administer CIC.
Amber’s parents unsuccessfully used the EAHCA’s administrative remedies to secure the
CIC services for Amber. Amber’s parents sought a court injunction ordering school officials to
provide Amber with CIC as a part of “a free and appropriate public education.” The parents
argued CIC was a related service. Parents also claimed a violation of §504 arguing the denial of
CIC resulted in Amber being improperly excluded from participation in a program receiving
federal aid. The United States District Court for the Northern District of Texas denied the
parents’ request for the injunctive relief. The court concluded CIC was not a related service
under the Education of All Handicapped Children because CIC did not service a need arising
from educating Amber. The court also denied the §504 claim because health care was not
generally recognized as a reasonable §504 accommodation at that time.
The United States Court of Appeals for the Fifth Circuit reversed the district court’s
decision. The appellate court held CIC was a related service under the Education of All
Handicapped Children Act because without the procedure Amber could not attend classes and
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benefit from special education. Secondly, the court held school officials’ refusal to provide the
CIC effectively excluded Amber from attending a federally funded school program, ergo
constituting a §504 violation. The case was remanded to the district court to develop a factual
record and apply these legal principles.
On remand, the district court found under Texas law a nurse or other qualified individual
could administer CIC services and therefore it constituted a related service for the purposes of
the Education of All Handicapped Children Act. The court ordered Amber’s IEP to be modified
to include the provision of CIC during school hours. The court of appeals affirmed, and the
Supreme Court granted certiorari.
Under the EAHCA, states were required to provide eligible children a “free appropriate
public education” The Act’s FAPE expressly used the phrase “special education and related
services.” Related services included “transportation, and such corrective, and other supportive
services as may be required.” Supportive service expressly included medical and counseling
service except medical service only required for diagnostic and evaluation purposes.
In determining if the CIC qualified as a related service, the Supreme Court asked two
questions. The first was CIC was considered a “supportive service… required to assist a
handicapped child benefit from special education?” On this question, the Court agreed with the
appellate panel. Amber was not able to attend school and benefit from special education without
the CIC; therefore, this service met the Act’s definition of supportive services. The second
question was whether CIC should be excluded from the definition of a related service because it
was a “medical service.” The Court reviewed the Department of Education’s regulations,
defining related services in part as “health services… provided by a qualified school nurse or
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other qualified person.” Since a nurse could perform the CIC services, the court reasoned CIC
fell in the category of health services and not medical services, meaning CIC was not an
excluded service.560 The Supreme Court affirmed lower court’s ruling that CIC was a related
service under the EAHCA.
Cedar Rapids Community School District v. Garret F. Fifteen years after Tatro, the
mother of an Iowa child once again challenged a district’s decision to deny services not
specifically listed as a related service. Garret was ventilator-dependent and his Iowa public
school district refused to provide him with continuous one-to-one school day nursing services he
needed to remain in school. According to the Supreme Court, the main issue in the case was
whether the definition of “related services” required a public school to provide a
ventilatordependent student with nursing services during the school day.
In the late 1980s, when Garret was four years old, his spinal column was severed when a
motorcycle struck him. Although paralyzed from the neck down, Garret’s mental capacities were
unaffected. He was able to speak, control his wheelchair with a puff and suck straw, and operate
a computer using head movements.566 During his first five years of schooling, the family
provided nursing services. During his kindergarten year, an aunt attended school with him and
then for the next four years the family employed a licensed practical nurse using the insurance
proceeds from the accident and other resources.
Garret’s needs required assistance catheterizing his bladder, suctioning his tracheotomy
tube, shifting him to a reclining position for five minutes every hour, manually pumping air into
his tracheotomy tube while his ventilator was checked, and assessing his ventilator for proper
functioning.
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In 1993, Garret’s mother requested school officials to assume financial responsibility for
providing Garret’s health care services during the school day. The district denied this request
arguing the IDEA did not require assumption of this obligation. Garret’s mother challenged the
denial and the Administrative Law Judge (ALJ) ruled in her favor. The ALJ noted school officials
had not contended a licensed physician must provide Garret’s service. Instead the parties
disagreed over the level of training required for a person providing care for a student who was
ventilator dependent for life support.
School officials challenged the ALJ’s decision and both the U.S. District Court for the
Northern District of Iowa and in the Eighth Circuit Court of Appeals affirmed the ALJ’s ruling.
The appellate panel applied the Irving Independent School Dist. v Tatro two-step
“related services” analysis setting forth a bright line test for determining if school officials were
financially responsible for providing medical services. The Tatro test indicated services provided
by a physician (other than for diagnostic and evaluation purposes) were subject to the IDEA’s
medical services exclusion, but services provided by a nurse or qualified layperson were not
exclusion services.
The first question the appellate panel considered was whether parentally requested
services were included within IDEA’s phrase “supportive services.” The Act expressly defined
supportive services as those “required to assist a child with a disability to benefit from special
education.” The second question was whether the health services Garret required were excluded
as support services because they needed to be performed by a physician. The appellate panel
concluded Garret’s services met the definition of support services and were not excluded services
because a layperson or nurse could perform them.
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The Supreme Court granted certiorari. In their certiorari petition school officials argued
the issue was the nature and extent of the service Garret required because it included one-to-one
nursing. They recognized Garret could not remain in school without the one-to-one nursing and
did not argue nursing services met the IDEA’s definition of supportive services.580 School
officials asserted the court should consider whether the care was intermittent or continuous,
whether current personnel could perform the care, the cost of the service, and the outcome if
service was performed poorly. The Supreme Court determined the services Garret required due to
his ventilator dependency were no more medical than the services required by Amber Tatro.
Therefore, the Court found a school nurse or another trained person could perform the services.
School officials argued the nature and extent of Garret’s disability required additional
personnel causing the district financial burden. Although the Court recognized school officials’
financial concerns, it noted the IDEA guaranteed a public education to qualified students without
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regard to cost. In addition to finding a school nurse or other trained personnel could perform
Garret’s services, the Court further noted Garret’s requirement of one-to-one nursing was
necessary because death was the potential consequence if this level of care was not provided.
The majority opinion noted “the district must fund such ‘related services’ in order to help
guarantee that students like Garret are integrated into the public schools.”
The dissenting opinion written by Justice Clarence Thomas and joined by Justice
Anthony Kennedy argued the Court made a mistake in Tatro when it focused on the provider of
the services as opposed to the services themselves to determine if the services were medical. The
dissenting opinion argued if Congress had intended for nursing services to be included as a
related service, this would have been expressly included in the list of services.
Intersection of the IDEA, ADA and §504
Children covered by the IDEA also receive overlapping protections from both §504 and
the ADA. In addition, §504 and the ADA also offer additional avenues for redress such as
enforcement by the United States Department of Education’s Office for Civil Rights (OCR).
Moreover, given their broader definition of disability, §504 and the ADA provide primary
protection to a limited number of children with disabilities who are not covered by the IDEA.
Finally, courts in some jurisdictions may grant compensatory and punitive damages to successful
§504 and ADA litigants, while not granting similar relief under the IDEA.
The IDEA imposes an affirmative obligation on school districts to provide eligible
children with a FAPE. The ADA and §504 prohibit discrimination against otherwise qualified
89
Id.
individuals based on disability. This means adequate remedies under the ADA and §504 may not
suffice under the IDEA. Courts often analyze ADA and §504 claims together in school cases,
although both statutes afford the basis for independent action.
Section 504, ADA and IDEA goals are similar in seeking to protect the rights of children
with disabilities. One of the goals of the ADA and §504 is to enable children with disabilities to
receive the same opportunities as children without disabilities, whereas IDEA’s goal is to enable
the more narrowly defined population of students with disabilities covered by the statute the
same educational opportunities as non-disabled students. This distinction has resulted in
inconsistent court rulings.594
Section 504 does not specifically address procedural safeguards such as impartial
hearings. However, the §504 regulations include a procedural safeguards provision requiring
recipients of federal financial funding to provide an impartial hearing to aggrieved parties.
There are no additional regulatory guidelines for the hearing. This is in direct contrast to the
IDEA. The §504 administrative agency for schools is the U.S. Department of Education’s
Office for Civil Rights. In 1977, the OCR recommended, but did not require, the use of the IDEA
model for impartial hearings.599 The §504 regulations do not prevent an IDEA hearing officer
from deciding §504 issues. Independent IDEA hearing officers sometimes rule on a §504 claim
intertwined with or incidental to an IDEA claim for students who are covered by both Acts. In
some cases, there can be additional liability under §504. This serves as an incentive for plaintiff
parents to pursue adjudication separately or in conjunction with IDEA claims. An example is the
use of service animals within the public schools. Section 504 also provides potential litigation
advantages over the IDEA, with respect to evidence, jury trials, expert witnesses, and monetary
damages.
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When asked to apply multiple laws to a single set of facts, courts sometimes struggle to
determine how to enforce the spirit of each statute while abiding by differing statutory
requirements. Generally, the courts do not allow a plaintiff to avoid the IDEA exhaustion
requirement by omitting the IDEA claim from the complaint if the remedy sought is available
under IDEA.604
604
Service Animals
Records describing attempts to systematically train dogs to help people with visual
disabilities date back to the late 1700s. Formal techniques to train service animals were recorded
in Germany after World War I with large-scale training of service animals for the blind. In the
late 1920s, the United States used dogs as service animals to assist people with visual
difficulties.607 The first use of a service animal to help a person with a hearing impairment
occurred in the United States in 1976.
Legal Requirements of a Service Animal
91
Id.
The text of the American with Disabilities Act is silent with respect to service animals.
However, the Department of Justice (DOJ), the agency in charge of ADA implementation, has
regulations addressing the use of service animals. In 1991, the DOJ issued the first regulation
requiring public accommodations and commercial facilities modify their practices to permit the
use of a service animal by an individual with a disability.
After passage of the ADAAA, the DOJ published its final regulations for Title II and Title
III on September 15, 2010. These final regulations included the definition of a service animal.
Service animal means 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. Other species of animals, whether wild or
domestic, trained or untrained, are not service animals for the purposes of this definition.
The work or tasks performed by a service animal must be directly related to the
individual’s disability. Examples of work or tasks include, but are not limited to, [1]
assisting individuals who are blind or have low vision with navigation and other tasks,
[2] alerting individuals who are deaf or hard of hearing to the presence of people or
sounds, [3] providing non-violent protection or rescue work, [4] pulling a wheelchair, [5]
assisting an individual during a seizure, [6] alerting individuals to the presence of
allergens, [7] retrieving items such as medicine or the telephone, [8] providing physical
support and assistance with balance and stability to individuals with mobility disabilities,
and [9] helping persons with psychiatric and neurological disabilities by preventing or
interrupting impulsive or destructive behaviors. The crime deterrent effects of an
animal’s presence and the provision of emotional support, well-being, comfort, or
companionship do not constitute work or tasks for the purposes of this definition
(numbering added).612
This definition became effective on March 15, 2011.
Under the ADA, service animals are allowed in state and local government facilities,
businesses, and nonprofit organizations serving the public. In general, service animals are
allowed in any location accessible to the public.614 However, service animals may be
excluded from operating rooms or burn units where the animal’s presence may compromise
a sterile environment.615 The ADA’s Title II regulations expressly provide:
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615
“Generally, a public entity shall modify its policies, practices or procedures to permit the
use of a service animal by an individual with a disability.”617
Two exceptions allow removal of a service animal. First, the animal is out of control and
the animal’s handler does not take effective action to control the animal. Second, the animal is
not housebroken. If an animal is properly excluded, the facility shall give the individual with a
disability the opportunity to participate without the service animal.619 A service animal must be
under the control of a handler and wear a harness, leash, or other tether, unless the handler is
unable, because of a disability, to use these items or tethering keeps the service animal from
performing its work. In these cases, the service animal must be under a handler’s control either
though voice, signals or other method. “The facility’s employees are not responsible for either
the care or supervision of the service animal.”
A person with the disability may not be queried about the nature or extent of the
disability. However two questions are permitted in order to determine whether an animal
qualifies as a service animal. These questions include: Whether the animal is required because of
a disability? and What work or task has the animal been trained to perform?
Allergies and fear of dogs are not valid reasons for denying a service animal access or
refusing service to an individual using a service animal. When a person who is allergic to dog
dander and a person who uses a service animal must spend time in the same room or facility,
93
such a classroom, both should be accommodated by assigning them to different locations within
the room or assigning them to different rooms.
The facility cannot require documentation of the service animal training or licensing or
ask for a demonstration of the work the animal is trained to perform. In addition, when the
individual’s disability or work the animal is trained to perform is obvious, the disabled person
may not be asked about the disability or the animal’s training.624A facility is not permitted to
enact a surcharge for the service animal. However, the individual with the disability may be
charged for damage the service animal causes if the facility typically charges non-disabled
persons for such damages.
The ADA amended the provision of only allowing dogs to be used as service animals to
include miniature horses. Although there are many examples of individuals using other types of
animals, such a monkeys, to assist with tasks of daily living, the ADA definition does not
recognize these as service animals. Facility personnel must also make reasonable modifications
to permit an individual’s use of a miniature horse if the animal has been trained to do work or
perform tasks for the benefit of the individual with a disability. In order to determine whether
modifications are reasonable, the facility must review whether it can accommodate the miniature
horse’s type, size, and weight; whether the horse is under a handler’s control; whether the animal
is housebroken; and whether the miniature horse’s presence in a facility compromises legitimate
safety requirements.
Although the following portion of the ADA did not specifically relate to service animals,
the OCR used the language below when considering allowing a service animal access.
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This part does not require a public entity to permit an individual to participate in or
benefit from the services, programs, or activities of that public entity when that
individual poses a direct threat to the health or safety of others.629
In determining whether an individual poses a direct threat to the health or safety of
others, a public entity must make an individualized assessment, based on reasonable
judgment that relies on current medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and severity of the risk; the probability that
the potential injury will actually occur, and whether reasonable modification of policies,
practices, or procedures or the provision of auxiliary aids or services will mitigate the
risk.
Use of Service Animals
There are many ways a person with a disability can use a service animal. The DOJ’s
definition listed nine examples; however, the list was not intended to be exhaustive. Common
examples of a service animal usage include a guide dog to assist people with visual impairments,
an alert dog to assist the hearing impaired, and service animals to support individuals with
mobility impairments. The use of service animals to benefit persons with neurologic and
psychiatric disabilities is a relatively recent phenomenon that is growing in popularity.
Specifically, the use of autism service animals is increasing as autism becomes more prevalent
and the research shows various benefits a child with autism gains from having a service animal.
Miniature horses can be used to physically aid movement or as guide animals. Miniature
horses are typically about two feet tall at the shoulder making it easier to keep them in a non-
farm environment. Guide dogs continue to be the most common type of service animal, but
miniature horses offer advantages over their canine counterpart. A lifespan of a miniature horse
is thirty-five years or more compared to the average eight to ten year lifespan for a service dog.
This reduces the frequency of replacing a trained animal and spares the individual with a
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disability the grief attendant to losing a companion. Miniature horses also provide an alternative
to people who are allergic to dogs or for individuals such as Muslims who believe dogs are
unclean. The disadvantages to using a miniature horse include the need to process waste more
often than dogs and limited access to vehicles because miniature horses are unable to curl up like
a dog.
The DOJ excluded emotional-support animals as service animals. The DOJ did not
acknowledge emotional-support animals as service animals because the agency believed “some
individuals with impairments –who would not be covered as individuals with disabilities-are
claiming that their animals are legitimate service animals, whether fraudulently or sincerely
(albeit mistakenly), to gain access to accommodations.”
There are no specific requirements stipulating the type of training needed for an animal to
be classified as a service animal, only that the service animal be “individually trained to do work
and perform tasks.” The ADA does not require certification for a service animal. "Businesses
may ask if an animal is a service animal or ask what tasks the animal has been trained to
perform, but cannot require special ID cards for the animal or ask about the person's disability."
The DOJ did not have a reason for not requiring certification other than to suggest
required certification could limit access to public accommodations. Many organizations oppose
certification of service animals with objections falling into two main categories. First, it places a
burden on the individual to obtain the certification and second, it violates the individual’s
privacy.
96
Others have disputed these objections, believing the individual should not consider the
process of certification burdensome since he or she is applying to receive assistance from the
government. As such, the government should have a means to ensure the individual is eligible for
the service. This could be viewed as similar to obtaining a handicapped-parking permit, which
has federally mandated requirements. In addition, current statutes allow the public
accommodation to individually question the owner with regards to the animal’s training in order
to determine whether the animal is a service dog. The use of certification would allow the
individual to hand over the certification and avoid the embarrassing questions and the possible
denial of access.
Since the first regulation was issued in 1991, the DOJ has faced the trend of individuals
using wild, exotic or unusual species, many of which were untrained, as service animals. The
greatest concern about people with disabilities using non-traditional service animals arose from
concerns about dangerous animals.
Although public schools must generally permit service animals to accompany children
with disabilities, school officials have no duty under the ADA to supervise or care for the animal
and may refuse to allow the animal under limited circumstances. For example, a public school
may deny a service animal if it “can demonstrate that making the modification would
fundamentally alter the nature of the service, program, or activity.”656
Rehabilitation Act Regulations Pertaining to Service Animals
97
The Rehabilitation Act of 1973 did not provide specific guidance on whether public
schools must modify rules, policies, and procedures to allow a student with a disability to be
accompanied by a service animal. However, the Department of Education (DOE) and the Office
for Civil Rights (OCR) believe the Act requires accommodations such as service animals and has
provided the following interpretation of §504 regarding service animal access to public schools.
If not allowing a student to bring a service dog into the classroom would effectively deny
the student the opportunity or equal opportunity to participate in or benefit from the
education program, then the recipient school would be in violation of Section 504 and its
implementing regulations.
Many school districts have refused to allow service animals working for children with neurologic
and psychiatric disabilities into elementary school classrooms because school officials perceive
these animals to be comfort animals as opposed to ADA recognized service animals.
IDEA Provisions Pertaining to Service Animals
The IDEA did not explicitly address service animals or whether states and their public
school districts must allow service animals in the classroom to provide a FAPE. This allows
public school officials to exercise discretion in determining whether allowing a service dog is
necessary for providing the child with a FAPE.
Public schools are not obligated to accommodate an emotional support animal under
either the ADA or §504 because both statutes specifically exclude emotional support animals.
However, a public school may have an obligation to accommodate an emotional support animal
under the IDEA if the child has a severe emotional or mental disability and the animal’s presence
is necessary for the child to receive a FAPE.
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State Statutes Governing Access for Service Animals
In addition to the three federal laws covering students with disabilities, there are also
state statutes addressing service animal public school access for students with disabilities. Below
are the only three state statutes addressing service animal access in public schools. The
Illinois School Code addressed the use of a service animal in public schools by a child with a
disability.
Service animals such as guide dogs, signal dogs or any other animal individually trained
to perform tasks for the benefit of a student with a disability shall be permitted to
accompany that student at all school functions, whether in or outside the classroom.664
New Jersey has similar legislation:
A student with a disability, including autism, shall be permitted access for a service
animal in school buildings, including the classroom, and on school grounds. A school
official may inquire as to whether the service animal is required due to a disability and
what task or work the service animal has been trained to perform, unless the student’s
disability and work or task that the service animal will perform are readily apparent. A
school official may require: (1) certification from a veterinarian that the service animal is
properly vaccinated and does not have a contagious disease that may harm students or
staff; and (2) documentation that any license required by the municipality in which the
student resides has been obtained for the service animal.
In California, the statute referring to service animals addressed transportation:
Guide dogs, signal dogs, and service dogs trained to provide assistance to individuals
with a disability may be transported in a school bus when accompanied by disabled
pupils enrolled in a public or private school or by disabled teachers employed in a public
or private school or community college or by persons training the dogs.
Service Animals for Children with Autism
Children with autism derive many benefits from a service animal that are less obvious
when compared to the benefits provided for students with other disabilities such as blindness or
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physical impairment.667 The primary benefit a child with autism gains from a service animal is
safety.
Children with autism are prone to elopement. A service dog may be tethered to the child
using a leash and belt system in order to stop the child from running or wandering off. This
tether system also allows the child to be more independent of adults. The use of a service dog
may increase a child’s social awareness by improving he child’s mood and ability to focus. The
service dog is trained to sense and mitigate a child’s anxiety attacks, reduce overstimulation,
provide stabilization, prevent tantrums through application of deep pressure by lying on top of
the child and providing an outlet for the child to re-direct self-stimulatory behaviors. To avoid
disrupting the continuity of the relationship between the child with autism and the service dog, it
is important for the dog to be allowed to attend school with the child.
Service animals for children with autism are individually trained to address the unique
needs of a specific child. A service animal trained to provide nontraditional supports maintains
its status as a service animal even if it also serves as a physical and emotional anchor to a child
with autism. This nontraditional support animal is distinguishable from emotional support
animals by virtue of their training and work performed.
Concerns Related to Service Animals in the Public Schools
Schools can legally deny access to service animals under §504 and the ADA if the
animal’s behavior poses a direct threat to the safety of others or results in a fundamental
alteration of the nature of the school program. In order to determine whether a service animal
presents a risk to others, school officials must show they considered the nature, duration, and
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severity of the risk, the probability an injury may occur, and whether reasonable modifications
could be made to mitigate the risk to an acceptable level.
The management of a trained service animal in the schools is often minimal. The animal
is trained not to need bathroom breaks during the school day, has minimal need of water, and the
handler only needs to know between five and ten commands in order to direct the service animal.
In addition, school officials should not assume a substantial disruption to the school day because
a dog is an unfamiliar with the classroom. History generally shows students quickly adjust to
having the service animal in a classroom and understand the work the dog is trained to perform.
Many organizations have set minimum behavior standards when a person encounters a
service animal. These standards are referred to as service animal etiquette. These guidelines
advise individuals against touching the service animal, making noises, feeding the service
animal, or deliberately startling a service animal. Service animal etiquette policy can be included
in an institution’s service animal policy. Staff and students need to be informed on the service
animal etiquette.
Federal Cases Involving Service Animals in Schools
There are a limited number of federal cases involving service animals. All five of the
following cases allege discrimination under §504 and/or the ADA as opposed to IDEA, even
though the children were IDEA-eligible.
Sullivan v. Vallejo City Unified School District
101
Sullivan v. Vallejo City Unified School District framed the issue of whether school
officials’ denial of a service dog violated a student with a disability’s civil rights as defined in
§504. Sixteen- year-old Christine Sullivan, diagnosed with cerebral palsy, learning disabilities,
and right-side deafness, used a wheelchair for mobility. In February 1988, Christine attended an
intensive two-week training program organized by Canine Companions for Independence. At the
conclusion of the training, Christine received a service dog. Christine’s parents requested
Christine be allowed to attend school accompanied by the service dog, but school officials
denied this request. Christine’s parents filed a lawsuit with the Eastern District Court of
California claiming school officials’ refusal to allow Christine to bring her service dog to school
was a violation of §504 and various provisions of the California Civil Code.692 The Vallejo City
School District moved to dismiss the Rehabilitation Act claim arguing Sullivan had failed to
exhaust the administrative remedies available under Individuals with Disabilities Education
Act depriving the court jurisdiction over the case.
Christine’s parents sought a court order requiring school officials to allow their daughter
to attend school with her service dog. School officials responded by claiming in order to achieve
this goal, an IEP team must first determine whether Christine required a service dog to obtain a
FAPE as guaranteed under the IDEA.
The district court denied school officials’ motion for dismissal of the complaint because
the parents had neither contended school officials had created an inadequate IEP, nor claimed a
service dog was necessary for Christine to receive a FAPE. Instead the parents had argued school
officials had violated §504 by arbitrarily refusing Christine access to the school when
accompanied by her service dog. The district court stated since the relief sought by the parents
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was not educationally based, it was not necessary to exhaust the IDEA’s administrative hearing
requirements.
The court found the parents had met the first and second requirements of a §504 claim
because Christine was a person with a disability who was otherwise qualified to attend public
school. Christine also satisfied the fourth §504 requirement because the school district received
federal funds.
Next the court moved to the third element necessary for a viable §504 claim, i.e., whether
Christine had been discriminated against based on her disability. School officials argued they
were not refusing Christine the ability to attend school, rather they were only denying her request
to be accompanied by the service dog. The court rejected this argument. The court noted as long
as the person with a disability made reasonable choices about how to effectively address her
problems, the Rehabilitation Act protected those choices from scrutiny and prohibited
103
Id.
Id.
Id.
discrimination against the person with a disability on the basis of those choices. The court
further observed Christine used the service dog to increase her physical independence. The court
found requiring Christine to select a different accommodation while attending school than she
used outside of school constituted exclusion. Therefore, the court determined Sullivan had met
the third element of a viable §504 claim.
Therefore the court found the Vallejo School District had not reasonably accommodated
Christine when school officials denied her the use of a service dog. The court did not find the
use of the service dog fundamentally altered the nature of the school program. Nor did the court
conclude school officials could deny access based on the fact she did not require the use of a
service dog to have access to the school. The court observed the dog provided Christine with
greater independence.707
School officials’ concerns about health and safety did not override Christine’s right to
full and equal access to the public school accompanied by her service dog.708 Christine’s IEP
resulted in her being placed in a special education class. However, Christine’s assigned teacher
had a severe dog allergy. The court noted the necessary IEP adjustment constituted only a minor
inconvenience.709 Christine’s parents were aware the use of the service dog would require a
change in placement due to the teacher’s allergies. However, the court cautioned school officials
104
Id.
Id.
Id.
Id.
Id.
707
708
709
105
Id.
Id.
Id.
Id.
Id.
not to change Christine’s placement to solely accommodate personal feelings of the others
712
regarding dogs in the school environment.
713
714
Cave v. East Meadow Union Free School District
715
716
717
This next service animal case was not heard until 17 years after Sullivan. John Cave’s
718
parents claimed discrimination based on §504 of the Rehabilitation Act and Title II of the ADA
719
because school officials denied their son access to the public school when accompanied by his
720
service dog.712 John Cave, Jr. was diagnosed with deafness at age three,713 and without
721
amplification he had no hearing ability. John Jr.’s cochlear implants provided sufficient usable
722
hearing to classify him as having a mild hearing loss.714 John Jr. attended W. Tresper Clark High
723
School in the New York District of East Meadow715 and his IEP, developed in collaboration with
724
his mother, included a wide range of special education and support services. John Jr.’s IEP
725
enabled him to be fully mainstreamed and included the accommodations of a one-to-one sign
726
language interpreter for all academic classes, a classroom note taker, an FM system that worked
727
with his cochlear implants, individual sessions with a teacher of the hearing impaired,
728
preferential classroom seating, and closed captioning for in-class videos.716
729
In May 2005, when John Jr. was in middle school, Mrs. Cave contacted the principal
730
requesting John Jr.’s service dog be allowed to accompany him to school. The middle school
731
106
Id.
Id.
Id.
Id.
Id.
principal informed Mrs. Cave dogs were not allowed in school. Mrs. Cave then contacted the
superintendent who told her the district did not have a policy regarding service dogs. In 2006,
John Jr. acquired a service dog named Simba, and he and his mother completed the necessary
training for the dog’s effective use. Mrs. Cave contacted the new high school principal when she
knew John Jr. had been matched with Simba, he again informed her dogs were not allowed in the
school.
In December 2006, John Jr.’s parents requested permission in writing for John Jr. to
attend school accompanied by Simba. His parents stated it would increase John Jr.’s independent
functioning because Simba would alert him to things such as people calling his name or
emergency bells. School officials denied the request stating the dog would be disruptive to
John Jr.’s education because his class schedule and overall education program would need to be
modified in order to avoid exposing allergic students and teachers to the dog. School officials
invited the parents to a §504 team meeting. During this meeting, it was determined John Jr. did
not require additional services or accommodations beyond his IEP. The parents did not attend the
§504 team meeting, but were later notified of both the outcome and their right to request an
impartial hearing if they disagreed with the determination.721
School officials also held a Committee on Special Education (CSE) meeting in January
that confirmed the §504 meeting results.722 The Caves attended the meeting and notified the
107
Id.
Id.
Id.
Id.
Id.
721
722
108
Id.
Id.
Id.
Id.
Id.
committee John Jr. was upset by the decision not allow him to bring the dog to school. The
724
parents did not appeal the determination of the CSE meeting.
725
After a series of discussions with school officials, the parents filed a lawsuit in the United
726
States District Court for the Eastern District of New York in February 2007 alleging violations of
727
the ADA, §504 and several New York statutes. In their complaint the parents asked for
728
preliminary and permanent injunctions allowing John Jr. access to the school when accompanied
729
by his service dog.724
730
The district court conducted a four and one half day hearing on the parents’ motion for
731
preliminary injunction. The judge denied the motion because the parents did not show the denial
732
of their motion would result in irreparable harm.725 The judge ruled in favor of the School
733
District noting the parents had failed to exhaust the administrative remedies available to them
734
under the IDEA726 and §504.727 The parents had relied on the Sullivan decision. However, in
735
Sullivan, the court concluded the IDEA exhaustion requirement did not apply because the parents
736
had not argued their daughter was being denied a FAPE.728
737
The Cave court found Sullivan was not binding for three reasons. First, the evidence in
738
Cave found John Jr. was independent in his functioning, which was not the case with Christine
739
Sullivan. Second, the nature of the relief John, Jr. requested, i.e., bringing his service dog to
740
school, was viewed by the Cave court as a modification to his IEP. Finally, the Sullivan court
741
recognized bringing the service dog to school would require a change to Christine Sullivan’s IEP
742
109
Id.
but did not consider this to be significant. In Cave, the court found a change in John Jr.’s IEP
triggered the IDEA’s administrative requirements.
Also, in Cave, school officials did not dispute John Jr. was disabled and covered by both
the ADA and the Rehabilitation Act. The question was whether he was denied the opportunity to
participate in or benefit from services, programs or activities offered at the school. The Cave
court pointed out school officials were not obliged to provide all accommodations, and noted the
accommodations already being provided to John Jr. were extraordinary. The court further
concluded the additional benefit afforded by the service dog was not substantial, particularly
when compared to the resulting disadvantages attendant to allowing the service dog, e.g.,
allergies of others and a modification of John, Jr.’s schedule. In addition, John Jr. would need to
leave class early in order to travel in the halls thereby forfeiting valuable instruction time. The
court further concluded the parents failed to prove John, Jr. had been discriminated against based
on his disability.
The parents appealed the district court decision to the United States Court of Appeals for
the Second Circuit. The parents agreed they had not exhausted IDEA remedies, therefore the
appellate panel had to first decide whether they were required to do so prior to filling the
lawsuit.
The parents argued their claim did not involve an IDEA violation but instead was a claim
of unlawful discrimination. They argued the service dog was “an independent life tool.” The
parents urged the appellate panel not to view John Jr. as a student being deprived of an
appropriate public education but as a person being denied access to a public facility by reason of
his disability and his non-educational need for a service dog.
110
Id.
The appellate court rejected this argument. Instead the panel concluded attendant
changes to John Jr.’s class schedule to accommodate the dog would affect his education. The
court pointed out under the IDEA, education was not viewed as simply academics but rather as a
program designed to meet a student’s needs and prepare them for adult life. This meant the use
of a service animal fell within the scope of the IDEA. The appellate court agreed with the lower
court’s decision.
John Jr.’s parents had not alleged an IDEA violation; therefore, they argued the IDEA’s
exhaustion requirement did not apply to their claim. Unlike Sullivan, where the court recognized
the distinction between the §504 claim and IDEA, in Cave, the district court treated the parents’
complaint as an IDEA claim covered by the exhaustion requirement. The court distinguished the
parental claim in Cave from Sullivan because the relief sought for John Jr. necessitated
modification of the IEP. The court in Cave concluded the addition of a service dog would require
a modification of John Jr.’s IEP. The court also dismissed the §504 equal access claim
concluding access to school was an educational-based activity. The court clarified its opinion by
pointing out a public facility was not required to provide every requested accommodation. The
court concluded dog allergies, the need to confine the dog during gym, and
John Jr.’s need to leave class early to travel with the dog combined to render the requested
accommodations unreasonable.
Even though the outcome in Sullivan and Cave were different, the work the service
animal was trained to perform was traditionally recognized. The next case involved using a
service animal trained to provide less traditional work.
111
Id.
C.C. v. Cypress School District
Six-year-old C.C. attended Cypress School District in California. CC had severe autism,
was nonverbal, and cognitively delayed. These challenges caused C.C. great difficulty when
interacting with others. When he became anxious C.C. would shriek, pace, plug his ears, laugh
inappropriately, flap his arms, pinch or scratch people, and wet himself.
In May 2010, C.C. was paired with Eddy, a service dog trained by the Autism Service
Dogs of America (ASDA). The training was specifically designed to prepare the dog to work
112
with C.C. The training included interrupting C.C.’s impulsive behavior, eliminating elopement,
and intervening when C.C. felt anxious.
Once the service animal was paired with C.C., the mother asked the school officials to
allow C.C. to attend school with his service dog, Eddy. School officials refused. The parents
decided to keep C.C. at home the last two weeks of school fearing some of the benefits would be
lost if he were separated from his service dog. During the 2010-2011 school year, C.C.
attended school without Eddy. During that year, C.C. attended a class with ten autistic students,
one teacher, and four trained assistants.
C.C.’s parents sued school officials claiming C.C. had been discriminated against on the
basis of his disability. The parents claimed school officials’ refusal to allow the service animal to
accompany C.C. to school violated §504 of the Rehabilitation Act, Title II of the ADA, and two
California statutes. The district court granted C.C.’s motion for preliminary injunction
recognizing the disruption of the bond between C.C. and his autism service dog posed a serious
risk of irreparable harm.
The court noted C.C. met the first and third necessary elements of an ADA claim. C.C.
was an individual with a disability, and if school officials had discriminated against C.C., it was
due to his disability. The second element, the basis for the School District’s defense, was whether
school officials had discriminated against C.C.
School officials argued Eddy did not meet the ADA definition of a service animal
because although Eddy had been trained, he only provided C.C. with comfort. The court
disagreed noting Eddy’s calming function was complemented by the various other tasks he
113
performed. These tasks included preventing C.C. from elopement and throwing tantrums. Thus
the court found Eddy met the ADA definition of a service animal.
School officials also argued the service animal would fundamentally alter the nature of
the school program. The court found the resulting programming changes were not unreasonable.
The special education program the student attended was already designed to be highly flexible
and tailored to meet the needs of individual students with disabilities. The court also observed no
school with an ASDA dog needed to hire additional staff to take care of the animal.
The court also rejected school officials’ claim Eddy would impede C.C.’s educational
progress. Instead, the court concluded educational opportunities were irrelevant under §504.
Finally, in response to school officials’ claim there was no irreparable harm caused by C.C.
attending school without Eddy, the court observed the bond between Eddy and C.C. deteriorated
while C.C was in school thereby reducing the Eddy’s efficiency. As a result of these findings, the
court granted the parents’ request for a preliminary injunction and C.C.’s service animal was
allowed to accompany him to school. This next case also involves a more non-traditional use of
a service animal.
A.S. v. Catawba County Board of Education
Four-year-old A.S. suffered from Fetal Alcohol Spectrum Disorder with symptoms
including a mild developmental delay, sensory integration difficulties, sleep apnea, insomnia,
and obsessive-compulsive traits. A.S.’s disabilities manifested as aggressive and self-injurious
behaviors, hyperactivity, lack of impulse control, elopement, and other challenging behaviors.
114
In the fall of 2009, A.S. enrolled in prekindergarten in the Catawba County Schools, and
February 2010, the District determined A.S. was eligible for special education services and
developed an IEP.
The child acquired a service dog in September 2009. The animal had been individually
trained to redirect the child’s self-injurious behaviors through deep pressure and to perform other
tasks designed to keep A.S. safe.
For more than a year, the District continually denied requests for A.S. to be allowed to
attend school with his service animal. Initially, school officials questioned whether the dog was
actually a service animal. Despite parents’ request, the IEP developed in February 2011,
determined the service dog was not necessary at school. The parents did not challenge the IEP
nor did they request a due process hearing under the administrative remedies of the IDEA.
In March 2011, the parents filed a complaint with the U.S. District Court of the Western
District of North Carolina, Statesville Division alleging discrimination based upon A.S.’s
disability as prohibited by §504 of the Rehabilitation Act and Title II of the ADA. The parents
requested A.S.’s service dog be allowed to attend school, monetary damages to compensate for
the retraining the dog required after being separated from A.S., and attorney fees.
School officials claimed the district court did not have subject matter jurisdiction in this
case because A.S.’s parents had not exhausted the administrative remedies available under the
IDEA. The parents argued the IDEA administrative exhaustion did not apply because the
complaint was not about the IEP but about discrimination. The court noted the IDEA addressed
complimentary complaints being brought to court based on the ADA or the
115
Rehabilitation Act in addition to the IDEA. The statute stated administrative procedures must be
exhausted as if the complaint was originally brought under the IDEA.
The court found on behalf of the School District and ruled the parents needed to exhaust
administrative remedies before pursuing a civil action. The court further noted, due to the timing
of the ruling, A.S. and his service dog would not be separated during the next four weeks before
school started for the 2011-12 school year. This gave the parents an opportunity to pursue the
IDEA administrative remedies prior to school starting.
M.T. and R. J. v. Evansville
Unlike the other four cases, this case does not involve school officials’ refusal to allow
the service animals to attend school. The parents’ complaints are in regards to the timeliness of
school officials’ response to a request for a service animal to accompany a child to school. M.T.
and R.J., two high school sophomores, attended different schools in the same school district.
Both students were physically impaired and requested their service animals be allowed to
accompany them to school. M.T. had severe diabetes and relied on her service animal to detect
changes to her blood sugar levels. R. J. had a rare condition resulting in epilepsy and mobility
impairment. She relied on her service dog to assist with mobility and balance and to assist her if
she had a seizure. In May 2013, parents informed their respective schools service animals would
accompany the students to school. On the first day of school in the fall of 2013, parents alleged
school officials presented them with a copy of the newly enacted School District policy
regarding service animals. According to the parents, the policy placed special burdens on
116
students with service animals. The policy was subsequently amended in response to concerns
expressed by M.T.’s parents.
The families maintained, notwithstanding the amendments, the policy still imposed
special burdens including a requirement for the families to provide documentation to the school
board at least ten business days prior to bringing the service animal to school. The parents
alleged their children were forced to attend school without their service animals. Due to R.J.’s
mother’s insistence that requiring R.J. to attend school without her service animal caused her
“great pain,” school officials allowed her service animal to attend school after two days despite
the policy. M.T., on the other hand, was not permitted to bring her service animal to school
between August 14, 2013, through August 29, 2013.
The parents of the students brought claims against the School District alleging violations
of the ADA and §504. The School District filed a motion to dismiss claiming the parents had not
exhausted the IDEA’s administrative remedies. The court ruled the motion to dismiss was an
affirmative defense and therefore could not be used to prevent the court from hearing the case.
As such, the affirmative defense would not be considered until school officials filed an answer to
the complaint. Therefore, the School District’s motion to dismiss was denied. At this time,
there is not additional information.
State Cases Involving Service Animals in Schools
Illinois is one of three states with school code provisions for service animals. Both of the
following Illinois cases allege school code violations; and therefore are heard in state versus
federal court.
117
Kalbfleisch v. Columbia Community Unit School District Unit No. 4
As with the case of C.C., this case involves an autism service dog. Christopher and
Melissa Kalbfleisch filed a claim in the Circuit Court of the Twentieth Judicial Circuit, Monroe
County located in southern Illinois. The Kalbfleisch alleged their local school district violated of
Section 14-6.02 of the Illinois School Code. Specifically the parents alleged school officials
refused to allow their five-year-old son Carter to attend school accompanied by his autism
service dog. The school officials filed a motion to remove the case to a federal court. The circuit
court found the claim lacked federal subject matter jurisdiction and denied the request.
Carter was diagnosed with moderate to severe autism when he was eighteen months old.
He was prone to daily tantrums and had pica. Carter also eloped, refused to walk in public, did
not speak, and had difficulty sleeping. After a two-year delay, Corbin, a hypoallergenic Bouvier,
became Carter’s service dog. Mrs. Kalbfleisch described Corbin’s training, and the training she
and her husband received prior to bringing Corbin home. In addition, an aide at the school
received two hours of training. Mrs. Kalbfleisch indicated after Corbin’s arrival, many of
Carter’s demonstrated autistic behaviors showed substantial improvement. She also described the
regression that occurred when Corbin and Carter were separated for a few days as consequence
of a family emergency.
118
Id.
Id.
The family requested Carter be allowed to attend school with his service animal. Arguing
the service dog did not provide Carter with any educational benefits, school officials denied the
request. School officials also indicated there was another child in the class with a rare lung
disease who was allergic to dogs. School officials also testified the service dog’s presence in the
classroom would be a substantial distraction.
The parents requested a preliminary injunction claiming irreparable injury if Carter was
not allowed to attend school with his service dog until the trial was complete. The court granted
the preliminary injunction. School officials appealed to the Appellate Court of Illinois, Fifth
District and argued the parents had failed to satisfy the requirements for injunctive relief because
they had not proven Corbin was a service animal. The appellate court noted this proof was not
requisite for granting of injunctive relief. The court pointed out Carter’s working relationship
with the dog deteriorated significantly after a brief separation and affirmed the lower court’s
conclusion Carter would suffer irreparable harm as a result of being separated from the dog
during school hours. The appellate court also rejected school officials’ interpretation that the
Illinois School Code only required access to service animals that provided an educational benefit
because the term “educational benefit” was not found within the statute language. The court
found Carter met the school code’s definition of a service dog and upheld the lower court’s
injunctive relief allowing Carter to attend school with his service animal. About the same time
the Kalbfleisch’s filed their case in southern Illinois, another family filed a case in central
Illinois.
119
Id.
Id.
K.D. v. Villa Grove Community Unit School District
As with the Kalbfleisch case, this family had acquired an autism service dog. The K.D.’s
parents claimed the denial of their request to allow their child to attend school with his service
animal violated the Illinois School Code. K.D., diagnosed with autism, attended Villa Grove
Elementary School from the time he was six-years-old. Prior to applying for a service dog from
Autism Service Dogs of America (ASDA) dog, K.D.’s mother informed the teachers she planned
on obtaining a service dog. Thereafter, school officials informed K.D.’s mother they would not
permit the dog to accompany K.D. to school.
In May 2009, ASDA provided K.D. a Labrador retriever named Chewey. Later school
officials sent a letter stating Chewey would not be allowed to accompany K.D. to school. The
parents continued to negotiate with school officials over this issue.796 However, on June 29,
2009, school officials informed the family Chewey would not be allowed to accompany K.D.
during the upcoming extended school year program.
On July 9, 2009, K.D.’s parents filed a complaint with the Circuit Court of Douglas
County against Villa Grove Community Unity School District No. 302 and the superintendent
claiming denial of the request to allow K.D. to bring his service dog to school violated the
Illinois School Code. The lawsuit sought a temporary restraining order and a preliminary
injunction so K.D could attend school with his service dog.799
School officials filed an opposing motion to dismiss the parents’ motion for a temporary
restraining order and preliminary injunction. School officials argued the parents had failed to
120
Id.
Id.
exhaust IDEA administrative remedies before commencing their action with the trial court. In
addition, school officials argued Chewey did not meet the Illinois School Code’s requirements
for a service animal.800 After a hearing, the court denied the school officials’ motion and granted
the parents’ motion for a temporary restraining order. As a result K.D. and Chewey started school
together in August 2009.801
In August 2009, the parents amended their complaint and requested four additional items
related to Chewey’s school attendance with K.D. First, the parents wanted school officials to
train at least one primary staff member and one backup staff member in service animal
management and the necessary commands. Second, the parents wanted school officials to
designate one primary staff member to hold Chewey’s leash during the school day. Third, a
primary staff member would release K.D. from his tether to Chewey while K.D. used the
restroom and during periods of heavy physical activity. Finally, school officials would allow
Chewey access to water and an opportunity to relieve himself when appropriate during the
800
801
school day. School officials filed a motion to strike the additional requests. The court granted
their motion finding the parents’ requests exceeded the scope of the School Code.
On November 10, 2009, the trial court conducted a hearing on the parents’ complaint.
121
Id.
Id.
Chewey’s ASDA trainer testified ASDA dogs received sixteen months of training beginning
when the dog was between six and eight months old. The trainer further testified when the
service dog accompanied a child to school, it remained in a down-stay position to keep the child
calm and safe. The dog did not move from this position unless commanded by its handler.
Therefore, the handler was important to ensure the dog was behaving.
She also stated K.D. did not command Chewey because he did not function at a level
where he could provide Chewey with a sense of control. In fact, Chewey was trained not to
respond to K.D.’s commands and another individual had to issue commands to Chewey.
Although Chewey knew up to thirty commands, a handler needed to know only five commands
to mange Chewey in the school setting. Chewey’s main handler was K.D.’s mother, Nichelle.806
Nichelle received training from the ASDA prior to Chewey being placed with the family. After
placement, Witko flew to the family’s home to teach Chewey how to apply his training to K.D.
Typically, the training included the school setting, but because school officials had refused to
allow Chewey in the school, this portion of the training was absent.807 However, when the trainer
returned in August 2009, she was able to conduct training with K.D.’s speech teacher, his one-to-
806
807
122
Id.
one aide, the head of special education at Villa Park Elementary School, and some additional
aides.
The trainer testified Chewey’s training taught him to stand his ground when tethered to
K.D. thereby preventing K.D. from elopement. Tethering reassured family members and school
staff the child would not run and allowed the child to participate in social activities. Chewey also
aided K.D. during transitional periods by applying deep pressure with his head or paw upon
command. The trainer also emphasized the importance of K.D. and Chewey working together at
all times when outside the home. This allowed the child and the dog to form a bond.
K.D.’s mother reported K.D.’s autism caused him to run away from adults and to leave
home during the night while the family slept. She reported K.D. had difficulty transitioning from
the home to public places. Prior to Chewey’s arrival, K.D. adapted poorly to changes in his
routine and slept only about two to three hours a night.
Nichelle testified she and her husband obtained Chewey to keep K.D. safe and calm. She
reported after Chewey’s arrival, K.D. was upset for shorter period of time and slept for six to
eight hours a night. K.D. was also able to transition between home and public places with less
difficulty. Nichelle attributed these improvements to Chewey’s ability to apply pressure when
commanded, to keep K.D. from eloping, and barking when K.D. left his bed.812
K.D.’s one-to-one assistant testified the dog did nothing unless commanded to do so by
an adult. She also testified she often had to repeat commands two or three times before Chewey
123
Id.
812
responded. When other dogs were near the playground, Chewey barked and tried to go to the
other dogs. Occasionally Chewey barked in school and sniffed the other students.
On cross-examination, the assistant admitted she knew the commands for correcting the
dog’s inappropriate behavior and used them effectively. She also admitted she felt confident as
Chewey’s handler. She indicated K.D.’s mother was supportive regarding problems the school
was having with Chewey. The assistant also testified she had seen Chewey tethered to K.D.
during transition periods, had commanded him to find K.D., and observed him applying deep
pressure to K.D.
Another School District aide reported instances of Chewey barking at other dogs on the
playground. She also testified K.D. had regressed in his independence skills. On
crossexamination, the aide admitted she had not notified K.D.’s mother of Chewey barking at
other dogs because it did not occur often.
The speech and language therapist had worked with K.D. both before and after Chewey
arrived.. Once, when K.D. was untethered and ran down the hallway, Chewey followed ignoring
the aide’s commands to stop. The speech theapist stated she often needed to repeat commands
two to three times.
She reported once Chewey began attending school, K.D. regressed in both academic and
independent skills. On cross-examination, she also stated there were other changes between the
two school years besides the addition of Chewey.
After the hearing, the trial court ruled in the parents’ favor finding the school officials
violated the School Code. The court also found Chewey met the requirements of a service animal
124
within the meaning of the statute because Chewey was individually trained to perform tasks for
K.D. The court recognized the tasks had not been performed without problem, but this lack of
perfection did not indicate the dog was not a service animal. The circuit court ordered school
officials to continue to permit Chewey to accompany K.D. to all school activities.
School officials appealed to the Appellate Court of Illinois, 4th District arguing the trial
court erred in granting the parents injunctive relief because the parents failed to exhaust the
IDEA’s administrative remedies. School officials further argued because of this failure, the trial
court lacked jurisdiction over this case. Specifically, school officials argued the parents should
have sought a special education due process hearing. The appellate court reviewed the single
question of whether Chewey met the definition of a service animal as written in the Illinois
School Code. The appellate panel found parents were not required to seek a due process hearing
regarding this interpretation of the School Code. According to the panel, school officials were no
more qualified to decide if an animal fit the definition than the courts because the school code
did not expressly include the words “educational benefit” in the service animal definition.
Therefore, the decision as to whether Chewey was a service animal was within the circuit court’s
jurisdiction.
School District officials also contended Chewey provided no tasks benefiting K.D., and
any task Chewey did perform were done so on the handler’s command. The appellate panel
disagreed with the school officials’ arguments because the witnesses’ testimony at the trial
established Chewey did provide benefit to K.D. The appellate court further affirmed Chewey met
the definition of a service animal. The trial court’s decision was affirmed and K.D. was allowed
to continue attending school with Chewey.
125
Id.
OCR Investigations
The Office for Civil Rights (OCR) has investigated complaints involving school district
policies on service animals. The students in these complaints were eligible for IDEA services
even though the complainants challenged compliance with §504 of the Rehabilitation Act of
1973 and Title II of the Americans with Disabilities Act of 1990. The first two cases started as
OCR complaints; however, after the OCR investigation and ruling, the families filed additional
complaints.
Bakersfield (CA) City School District
A student diagnosed with autism spectrum disorder was identified as an individual with a
disability under IDEA. In 2002-2003, as a second grader, the child began receiving special
education services with an IEP in the Bakersfield City School District. Over the next several
years, there were multiple entries in the student’s IEPs and on other school documents regarding
behavior concerns and the student’s difficulties with peers. In January 2007, when the student
was in sixth grade, the IEP team recommended adding a personal assistant to the student’s IEP
services for six hours per day.
In March 2007, the family decided to obtain a service dog for the student and
communicated this information to the elementary school. In April, after a month of training, the
family brought the dog home. For three days from April 10-12, 2007, the student attended
school with the dog. The family provided documentation regarding the service dog training to
school officials and also to the special education office. During the three days the dog was in
126
attendance, school staff noted a positive difference in the student’s behavior, concentration, work
completion, self-confidence, and interaction with other students at recess. At the end of the day
on April 12, school administrators informed the parents the dog could no longer attend school
with the student citing concerns regarding the dog’s status as a service dog and his threat the
health and safety of staff and students. The next day, the parents removed the student from
school.833
833
127
The parents filed a complaint with the United States Department of Education, Office for
Civil Rights on April 18, 2007, alleging school officials had discriminated against the student
based on his disability. Specifically, they stated school officials had established discriminatory
conditions or restriction on the student’s use of a trained dog as a service animal. On April 20,
2007, during the OCR investigation, school officials asked the parents to sign an agreement
releasing the School District from all obligations to the student and from all potential liability
arising from the dog. The proposed agreement referred to the dog as a “behavior therapy” dog.
The parents refused to sign noting under the ADA the student had a right to attend school with a
service animal.
On May 9, 2007, the school team held an IEP meeting but did not discuss whether use of
the dog was necessary in order for the child to receive a FAPE. On May 25, 2007, the special
education director sent a letter offering to reconvene the IEP to discuss whether the student
needed a dog as a related service or supplementary support or service under the IDEA. The letter
did not provide the parents with any information regarding the grievance process for Title II of
the ADA.
In the fall of 2007, the parents attempted to enroll the student in a neighboring school
district, but the neighboring school district had reached maximum capacity. While the parents
appealed this decision, the Bakersfield City School District placed the child on an Independent
Study Program.836
128
Id.
836
James M. Wood, an OCR official, sent a letter to the Superintendent of Bakersfield
School after conducting an investigation. The OCR gathered evidence through interviews and
reviewed documents and records submitted by both school officials and the student’s parents.
The OCR found the School District violated Title II and Section 504 by excluding the dog from
school. The OCR noted school officials had not conducted a specific inquiry as to whether the
dog was appropriately trained as a service animal, or whether its function addressed the student’s
disability needs. The OCR also criticized the School District’s failure to conduct a hearing
regarding the dog’s status as a service animal prior to determining the dog posed a health and
safety risk to students and staff. Even if school officials had concluded the dog did not qualify as
a service animal, the OCR observed school officials should have considered whether the dog’s
presence was necessary for the student to receive a FAPE under the IDEA. The OCR also noted
the student’s behavior improved significantly when he brought his dog to class. There was no
evidence either staff or other students complained about the dog’s presence. By failing to
consider whether the dog was a necessary aid or service, the OCR concluded school officials had
deprived the student of his procedural safeguards under the IDEA.
The OCR also found although school officials discussed the service dog at the IEP
meeting, they failed to consider the service dog’s impact on the student’s safety, adaptive
behavior, and ability to develop and meet social and behavioral goals. School officials denied
any violation but agreed to adopt a resolution to address the OCR’s findings. The OCR noted
federal courts had not determined whether service animals should be analyzed from the equal
access question under Section 504 /Title II or a FAPE question under IDEA. However, in this
case the OCR reported school officials had failed to look at either question. School officials
129
failed to perform any investigation to determine if the dog was a service animal as defined by the
ADA. Furthermore, they did not provide the family with information about the complaint
procedure if the parents disagreed with the District’s decision. Under IDEA, school officials
were required to consider whether the dog was a necessary part of the student’s IEP. The factors
they should have considered ranged from how the dog would assist the student, the impact of the
animal’s presence in the school, and how the dog would alter the student’s placement. The OCR
did not decide whether or not the dog was a service animal. They left this decision to the school
officials.
The Bakersfield City School District subsequently determined the student’s animal did
not fall within the ADA definition of a service animal and the dog’s presence was not necessary
for the student to receive a FAPE. The parents initiated a hearing to determine whether school
officials were denying a FAPE by assigning a one-to-one aide instead of allowing the dog to
attend classes with the student.
At the hearing, the student's parents presented evidence from the person who trained the
dog regarding how a service dog assists a child with autism, and his observations of the
successful relationship between the student and the dog. However, the trainer did not know if the
use of a service dog had been endorsed by autism experts or if there were any peer reviewed
studies endorsing the use of service dogs for children with autism. The Administrative Law
Judge (ALJ) determined the evidence supported school officials’ position that the dog was not
needed for the student to receive a FAPE. The ALJ’s determination was based upon a lack of
persuasive empirical evidence a service dog could help with the student’s education, and the IEP
team’s conclusion the service dog was not necessary. Additionally, the ALJ found a lack of
130
Id.
evidence indicating the use of the service dog as opposed to the one-to-one aide would have
allowed the student to be educated in the least restrictive environment.
E.F. v. Napoleon Community Schools
This case starts as an OCR complaint but eventually ends up in district court. During the
2009-2010 school year, a six year old with spastic quadriplegic cerebral palsy attended
kindergarten at Ezra Eby Elementary School. The cerebral palsy significantly limited the child’s
motor skills and mobility but did not impact her cognitively. The child also had been diagnosed
with attention deficit hyperactivity disorder (ADHD) and had a history of seizures. The child’s
IEP team placed her in a general education classroom with the special education supports of a
one-to-one paraprofessional, occupational therapy, physical therapy, speech language services,
extended school year, and resource program services.
In March 2009, the parent notified school officials of the family’s plan to obtain a service
animal to accompany the child, E.F., to school during the 2009-2010 school year. According to
the parent, the superintendent seemed supportive, and although the principal raised concerns
131
about allergies and liability, it was her belief school officials would permit the service animal to
attend school with the child.
The parent sent a letter to the principal on October 12, 2009, informing him the student
would miss ten days of school for training with her service animal, Wonder. Additionally, the
parent stated she expected Wonder would be allowed to attend school with E.F. upon her return.
The parent also requested a copy of the School District’s policies regarding service animals.
The service animal had received ten to twelve months of training including training on
the specific needs of this child. The child’s parent was trained as Wonder’s handler because E.F.
was currently not physically strong enough to handle the service animal. The student was
responsible for verbally commanding the animal, but her parent physically managed the service
animal. The parent provided school officials with documentation of the service animal’s training,
including a list of tasks the service animal had been trained to perform as well as the handler and
service animal training certificates. In addition, she provided letters from the student’s doctors
detailing information about the benefits of the service animal.848 The tasks Wonder was trained to
perform included, but were not limited to, retrieving dropped items, helping E.F. balance when
she used her walker, opening/closing doors, turning off/on lights, helping E.F. take off her coat,
and helping her transfer to/from the toilet.849
Although school officials allowed the parent to drop off E.F. with her service animal on
numerous occasions, at a meeting on December 11, 2009, attended by school administrators and
the family, school officials cited various reasons for not allowing Wonder in the school,
848
132
Id.
Id.
849
including the fact E.F. did not need a service animal because she had an aide. The parent reported
school officials threatened to remove the assignment of the aide from the E.F.’s IEP if she
continued to bring the service animal to school. Thereafter school officials received a letter from
another physician stating the service animal assisted E.F. with mobility issues with the goal of
increasing her independent motor skills, but E.F. would continue to require an aide in addition to
the service animal.
On January 7, 2010, the IEP team met and considered whether the service animal was
necessary to provide E.F. with a FAPE. The IEP team concluded E.F. was successful in the
school without the service animal and all of her needs were being met by the program and
services in place. The team further stated Wonder would not be beneficial to E.F. and therefore
she was not entitled to utilize the service animal at school because an aide performed Wonder’s
tasks. The parent agreed to mediation to solve the problem.
As a result of mediation, school officials agreed to allow the service animal to attend
school with E.F. on a thirty-day trial period until the end of the school year. The trial period
allowed school officials to observe Wonder as well as the third party handler, the parent. The
District observers wrote detailed notes during the trial period. These records indicated E.F. was
prohibited from attending various school activities with Wonder. The handler and the service
animal were required to sit in the back of the room away from E.F. The handler engaged in
disruptive activities during the day, and Wonder was prohibited from performing certain tasks.
On July 30, 2010, the OCR received a complaint from the parent against the Napoleon
Community Schools and the Jackson County Intermediate School District. The complaint alleged
the District excluded E.F. from, or limited her participation in, their educational programs and
133
activities because they denied access to the service dog. As part of its investigation, the OCR
reviewed the District’s policy on service animals and found numerous compliance concerns. As a
general rule, the OCR does not review individual placement decisions or resolve disputes over
the content of education plans as long as Section 504 regulations are met. However, in this case
the issue involved different treatment, program exclusion, and failure to provide equal
opportunity on the basis of a disability.853
The U. S. Department of Justice had previously taken the position the ADA required
schools to allow individuals with disabilities to be accompanied by service animals except for
rare instances of the risk of direct threat or fundamental alteration of the program. Individualized
assessment and reasonable judgment were to be used to ascertain the nature, duration, and
severity of the risk and alteration, and whether reasonable modification could mitigate those
concerns. In addition, the individual with the disability was not required to be the animal’s
handler.854
The OCR ruled Wonder met the definition of a service animal, and school officials had
been provided sufficient information to make that determination. The OCR found school officials
placed many restrictions on the use of the animal, thereby preventing the animal from actually
serving the student. Furthermore, the OCR concluded school officials had violated the
antidiscrimination requirement of Section 504 and Title II by insisting the student did not need
853
854
her service animal because they provided her a human aide. The OCR reasoned by limiting the
ability of the student and the parent to choose the type of accommodation, school officials
inappropriately inhibited the student’s independence and this resulted in discrimination. The
134
Id.
Id.
example the OCR used was requiring a student who used a wheelchair to be carried around the
school.
The OCR noted one of Title II’s fundamental purposes was to increase the independence
of individuals with disabilities. In addition, §504 supported providing a student with the
opportunity to access programs as independently as possible. In this case, denying the student the
use of the service animal in the school setting had a negative impact on the relationship and
assistance the service animal provided the child outside of school. Based on all of these findings,
the OCR determined school officials had violated Section 504 and Title II.
School officials did not admit to any violation but agreed to a resolution allowing the
student to return to school accompanied by her service animal at all school related activities,
ensured full integration of the service animal into the school environment, provided for the
training of staff and students, and revised the District service animal policies and procedures.
The parents met with a District representative, Pamela Barnes, over the summer. Based
upon this meting, the parents concluded school officials resented E.F. The parents enrolled E.F.
in a neighboring school district where Wonder’s attendance was allowed.
Thereafter the parents filed a three-count complaint with the U.S. District Court, Eastern
District of Michigan. The complaint alleged a violation of Section 504 and Title II against
Napoleon Community School District and Jackson County Intermediate School District. School
officials filed a motion to dismiss based on the parents’ failure to exhaust the IDEA’s
administrative remedies. The parents argued they were not required to adhere to the IDEA’s
exhaustion requirement.
135
The court noted the IDEA’s exhaustion requirement was not limited to only to IDEA
claims. Thus when parents sought to enforce rights arising from the denial of a FAPE, it did not
matter whether the denial occurred under the IDEA or under §504. The claim required an
exhaustion of administrative remedies. The court viewed the parents’ request of an award of
monetary damages not sufficient to render the exhaustion of administrative remedies
unnecessary.860
This federal district court reviewed the decision in the Cave case, which also involved a
service animal. In that case, District representatives testified the child’s existing IEP would need
to be changed to accommodate the service animal attending school. The parents in this Napoleon
case argued the District’s obligation to satisfy Section 504 and Title II was entirely separate from
the District’s obligation to provide a FAPE under the IDEA. The court disagreed with this
argument and concluded the IDEA administrative exhaustion requirement was triggered. The
court believed Wonder’s attendance would affect the IEP. Since the parents did not exhaust the
IDEA’s administrative procedures prior to filing the case, the court granted the District’s motion
to dismiss the case.861
860
861
136
Id.
Colorado Springs (CO) School District # 11
While other cases mention individuals with allergies weighing into school officials’
decisions about allowing the service animal, the following case is the only one where school
officials actually switch from allowing the student to attend with his service animal to denying
access to the student’s service dog based on an allergy.
A freshman at Doherty High School in Colorado Springs District # 11 was covered by an
IEP for a physical disability, cerebral palsy quadriplegia. The student had attended school with
his service dog since second grade until November of his freshman year when the principal
informed the parent the dog was banned from school because a teacher had significant allergic
reactions to the dog. The principal made the decision after consulting with the District’s EEOC
Ombudsperson/504 Coordinator.863
The parent stated she requested an IEP meeting to consider adding the dog to her son’s
IEP. School officials disagreed and reported the parent inquired about adding the dog to the IEP
but did not expressly ask for an IEP meeting. No IEP meeting was held. However, staff members
and the parent met on January 4, 2010 to discuss the issue. The special education administrator
informed the parent that school officials would not consider whether to add a dog to the IEP
because other school districts they had consulted reported not needing a service dog at school in
order to meet student needs. On February 6, 2010, the superintendent sent a letter to the parent
stating the dog would not be added to the IEP and the parent could request a hearing from the
504 Coordinator’s office regarding the dog’s exclusion from school. The parent received
137
Id.
Id.
863
subsequent communication from both the principal and the superintendent reporting the decision
to exclude the dog would stand. School officials and the parent, along with the parent’s attorney,
participated in mediation. No agreement was reached. The parent withdrew her son from school
and enrolled him in an online school.
In the complaint, the parent alleged two violations: school officials failed to consider her
child’s individualized educational needs and failed to provide due process before excluding the
service dog. On the issue of due process, the OCR found school officials did not fail to provide
the parent with due process rights as evidenced by the mediation attempt. On the issue of
considering individual educational needs, the OCR found school officials failed when they did
not convene an IEP meeting to determine whether the dog was necessary in order for the student
to receive a FAPE. By relying on what other school districts did for students, school officials did
not consider the facts in this particular situation. The OCR did not rule as to whether the dog in
question was a service dog.865
In an effort to resolve the OCR issues raised, school officials agreed to draft policy and
administrative regulations governing service animals. In addition, the OCR found a service dog
might be included in a student’s §504 plan or IEP if the multidisciplinary team reached this
conclusion. Finally, if the student returned to the school district, school officials agreed to
convene an IEP meeting to consider information from a variety of sources, including doctors’
notes and other pertinent information regarding the student’s need for the dog. If the parent
disputed the team’s decision, she would be able to pursue IDEA’s due process remedy.866
138
Id.
Id.
865
866
School Administrative Unit #23 (NH)
This New Hampshire complaint is the only one in which the OCR addressed the provision of
school officials providing a handler for the service dog. The OCR closed this investigation without
ruling on the parents’ §504 and Title II discrimination claim because school officials voluntarily
agreed to resolve the complaint. The parents filed the complaint because their son was not allowed
to attend school with his service animal unless the parents provided the handler. According to the
parents, the child’s baby-sitter was serving as the service dog handler for the child’s seizure-alert
dog.868
School officials agreed to review and amend its service animal policies and disseminate the
polices to all members of the school community so everyone would be aware of how to respond
appropriately to the presence of service animals on School District premises and understand
individuals with service animals may not be excluded from or discriminated against in any of the
District’s programs, services or activities. Further, school officials agreed to provide training
related to the student’s use of his service dog while in school.869
The OCR required the District policy and procedure to include the following information.
1. The definition of service animal as “any guide dog, signal dog, or other animal individually
trained to do work or perform tasks for the benefit of an individual with a disability,
including, but not limited to guiding individuals with impaired vision, alerting individuals
with impaired hearing to intruders or sounds, providing minimal protection or
139
Id.
Id.
868
869
rescue work, pulling a wheelchair, or fetching dropped items”; alerting others in the event
of a seizure.870
2. School officials may ask an individual with a disability to remove a service animal from
the premises if (a) the animal is out of control and the animal’s handler does not take
effective action to control it; or (b) the animal is not house broken.871
3. Visitors to School District grounds and facilities accompanied by a service animal would
be allowed access. Only in circumstances when a disabled student or staff member wishes
to bring his/her service animal to school on a permanent bases, shall school officials require
notice prior to the proposed use of the service animal on the premises.
The OCR noted a designated staff member or outside aide would be responsible for issuing
necessary commands to the service animal. School officials would contract with a service dog
trainer with experience in training seizure-alert dogs. The trainer would obtain the necessary
information in order to develop a training program for the dog and the aide. The goal was to train
the aide to be able to appropriately issue commands in order to allow the dog to accompany the
student during the school day without interfering with the student’s movement, the student’s
therapies, and without disrupting the classroom or school environment with excessive noise or
distraction. If the trainer determined the dog was unable to function in the school setting, the
parents would be allowed to pay for additional training or provide a handler at their own expense
if they wished to continue to have the dog accompany the student to school. If a particular aide
140
Id.
Id.
870
871
141
Id.
proved unable to master the skills necessary to handle the dog, the school officials would identify
and train another person.
Catawba County (NC) Schools
This next OCR complaint does not reference the district court case the parents filed
against the school district in A.S. v. Catawba County Board of Education. The OCR investigation
is based on the complaint the parents filed following the district court’s decision regarding the
parents’ requirement to exhaust administrative remedies before filing a complaint in district
court. The following is the additional fact pattern from this effort to resolve the families’
September 2012 OCR complaint.
In March 2012, school officials adopted a service animal policy. Under the policy,
individuals wishing to bring a service animal to school were required to work with school
personnel to create a plan addressing the presence of the service animal during the school day.
The plan would include appropriate training for school personnel and students in order for them
to interact with the service animal, how to address the presence of a handler who is not a school
district employee or student, and any necessary modifications to the educational program.876
The policy also set forth four reasons the District could exclude a service animal.
1. The animal posed as direct threat to the health and safety of others that could not
be eliminated with reasonable modifications.
142
Id.
Id.
876
2. The animal was out of control and handler could not or did not take effective
action to control the animal.
3. The animal was not housebroken.
4. The presence or behavior of the animal fundamentally altered the service,
program, or activity of the school.
In June, pursuant to the new policy, the parents emailed the principal and incoming
superintendent requesting a plan to facilitate the student’s use of his service dog in school during
the 2012-13 school year when the student would be in second grade. The email explained the
service animal’s eleven month training to do work and listed the various tasks the service animal
was trained to perform.878
A meeting was scheduled for early August but was later canceled by school officials
when the parents indicated they had no additional information beyond what they had shared in
the email. The principal sent an email to the parents indicating the service animal would not be
allowed in the school because the presence of the animal would fundamentally alter the program
and services of the school. The superintendent confirmed this decision in a letter dated August 3,
2012.879
The OCR complaint referred to this most recent denial of parents’ request and alleged
Startown Elementary School had discriminated against their student on the basis of his disability
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878
879
by refusing to allow him to bring his service animal to school during the 2012-2013 school year.
The OCR investigated the complaint.
During the OCR interviews, neither the superintendent nor the principal could adequately
explain why the service animal would undermine the IEP goal for the child to develop
independence. The OCR reported it did not typically second-guess educational decisions;
however, since the fundamental alteration was a legal standard, they reviewed the substance of
the school district’s decision.
Upon reviewing the minutes from a meeting dated December 18, 2012 (after the
complaint was filed),882 the OCR found the student had had an incident of aggression against
another student and a teacher that could have resulted in criminal charges. In addition, school
personnel were managing the child’s defiant behaviors by removing him from general education
to a calming tent thereby separating him from general education. The service animal’s work was
to lie next to the student and calm him to reduce incidents of aggression toward others.
According to the OCR, the use of a service animal would have potentially increased the child’s
independence and reduced the requirement of adult intervention.
The OCR noted although the policy school officials enacted complied with §504 and
Title II, the implementation of the policy did not. The OCR noted the “fundamentally altered”
language required a heavy burden of proof from the District in order to be used as a reason for
deny access. School officials failed to meet this burden of proof; therefore, the OCR concluded
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Id.
the District failed to comply with Section 504 and Title II. The District agreed to a resolution
allowing the child to attend school accompanied by his service dog.884
884
CHAPTER THREE:
ANALYSIS
To begin unraveling the complexities regarding a parental request for their child to be
allowed to attend public school accompanied by a service animal, this study analyzed applicable
disability legislation, governing agency interpretations and court decisions. Since school officials
are required to develop and implement policies and procedures to ensure adherence to each
federal statute, the intent of this study is to provide guidance for accomplishing these important
obligations. This chapter synthesizes some of the most important findings emerging from this
study.
Understanding Who is covered by the Three Applicable Federal Disability Statutes
In order for a service animal to be allowed to accompany a student to a public school, the
child must be an “otherwise qualified individual with a disability.” This is the first inquiry a
court will conduct in formulating a disability related ruling. As noted in Chapter Two, a student
can qualify as disabled under either §504 of the Rehabilitation Act, Title II of the ADA, and/or
the IDEA. Section 504 and Title II claims are generally considered together due to the statutory
similarity in the definitions. Additionally, the ADA Amendments Act (ADAAA) applies to both
§504 and Title II.
When investigating the 2008 Bakersfield (CA) City School District, the Office for Civil
Rights (OCR) noted federal courts have not determined whether service animals should be
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analyzed from the equal access perspective pursuant to §504 /Title II or as a free appropriate
public education (FAPE) issue under the IDEA. This lack of clarity reinforced the need for
school officials to determine whether the student qualifies under any or all of the three applicable
federal statutes and accompanying regulations.
The Rehabilitation Act of 1973 defines an individual with disability as “Any person who
(A) has a physical or mental impairment which substantially limits one or more of such person’s
major life activities, (B) has record of such an impairment, or (C) is regarded as having such an
impairment.”889 The accompanying regulations further explicate the terms “physical
impairment” and “major life activities”.890
Any recipient of federal financial assistance including public schools must adhere to
§504. According to §504 an “otherwise qualified handicapped individual” must not be excluded
from participation in a federally funded program “solely by reason of his handicap.” In the
school setting “otherwise qualified” refers an individual who meets the requirements for being
enrolled in the public school. This includes both residency and age.
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Pursuant to the Americans with Disabilities Act, an individual must meet at least one of
the Act’s three definitions of “disabled.” An individual must have “(A) a physical or mental
impairment that substantially limits one or more of the major life activities of such an
impairment.” The term “substantially limits” refers to individuals with a disability in comparison
to most people in the general population. The impairment need not prevent or severely restrict
the individual in performing a major life activity.896
The early Supreme Court’s §504 decisions Arline897 and Davis applied a broad definition
of disability and thereafter, lower federal courts followed suit as demonstrated in Thomas.
Beginning with Sutton, the Supreme Court began to formulate ADA rulings using a narrow
definition of disability. Congress, finding this restricted judicial interpretation did not align with
their original intent, passed the ADAAA to make it easier for individuals to qualify as disabled
under both the ADA and the Rehabilitation Act. While the ADAAA did not change the three-part
disability definition, it did clarify the terms used to allow for broader application. The ADAAA
added to the original list of major life activities,bodily functions, and conditions that are episodic
or in remission. Impairments must be considered without regard to the ameliorative effects of
mitigating measures. All of these changes resulted in more public school children qualifying as
disabled under §504/Title II. School officials should be sensitive to this fact and carefully
consider whether the child meets statutory definitional requirements.
In order for a child to qualify for a disability under the Individuals with Disabilities
Education Act (IDEA), school officials need to conduct a nondiscriminatory evaluation of the
child using “a variety of assessment tools and strategies to gather relevant functional,
developmental, and academic information about the child, including information provided by the
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parent”907 to determine whether the child is eligible to receive special education and related
services. Additionally, a child must be evaluated in his or her native language using racially and
culturally unbiased instruments. The IDEA sets forth thirteen specific disability categories for
qualifying a child aged three through twenty-one for special education and related services.
Because the IDEA criteria are more stringent than §504 and Title II, a child who meets
the IDEA eligibility requirements would also meet the eligibility requirements of §504 and Title
II. On the other hand, a child who meets the eligibility requirements under §504 and Title II may
not meet the IDEA’s eligibility requirements.
Understanding When an Animal Meets the Criteria for a §504/Title II Reasonable
Accommodation
Definition of §504 and Title II Reasonable Accommodation
In order to determine whether a service animal meets the criteria to be considered a
reasonable accommodation, school officials must have a clear understanding of what constitutes
a reasonable accommodation. The definitions of a reasonable accommodation under §504 and
Title II are essentially the same when applied to the public school setting. A reasonable
accommodation is a common-sense alteration intended to enable persons with a disability to
participate to the same extent as their nondisabled counterparts. Not only should an
accommodation be reasonable, it should also be necessary. According to the courts, an
accommodation may be considered “necessary” when it is shown the individual challenged with
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the disability requires the requested accommodation.
Every accommodation request should be considered on an individual basis. An agency
faced with deciding how to accommodate should ask the individual how he or she would like to
be accommodated. Not all requests will be reasonable. If the accommodation is not reasonable, it
is not the required solution. However, the government agency is still required to provide the
person with a disability access and an opportunity to participate. Therefore, alternative
reasonable accommodation options must be considered.
One option agency officials can use to decide if an accommodation is reasonable is to
consider both the nature and severity of a disability. In Martin, the Supreme Court’s decision was
based on the nature and severity of professional golfer, Casey Martin’s, individual disability.
Martin’s requested accommodation, use of a golf cart during PGA tournaments, was weighed
against the severity of his impairment. The Supreme Court found Martin’s requested
modification was both reasonable and necessary.
When investigating a parental request for a service dog to accompany their child to a
Michigan public school, the OCR examined the nature of the requested accommodation. OCR
officials reasoned by limiting the accommodation options, school officials inappropriately
inhibited the student’s independence and thus discriminated against the student. The example the
OCR used for comparison was requiring a student who requested a wheelchair to be carried
around the school.
Fundamental Alteration
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Generally, there are two reasons an accommodation may not be reasonable. First, the
requested accommodation would result in a fundamental alteration of the nature of either the
services or program. The ADA’s language provides “no individual with a disability be excluded,
denied services, segregated or otherwise treated differently… unless the entity can demonstrate
that taking such steps would fundamentally alter the nature of the… services… or would result in
an undue burden.”
