What You Need to Know About Service Animals in Schools – Part 2
Editor: Sanmathi (Sanu) Dev, Esq.
In Part 1 of this series, we discussed what qualifies as a service animal and what types of inquiries a school district is permitted to make. Today, we will discuss the parameters by which a school district may exclude a service animal from school, the responsibility of caring and supervising the animal, allergy and/or fear considerations, and liability insurance.
Pursuant to 28 C.F.R. § 35.136 (b), once a school district permits the use of a service animal by a student with a disability, the service animal can only be removed from the premises under the following conditions: 1) the animal is out of control and the animal’s handler does not take effective action to control the animal, or (2) the animal is not housebroken. If school administration properly excludes the animal due to one of these triggering conditions, the school must still provide the student with a disability an opportunity to participate in the service, program, or activity without the service animal pursuant to 28 C.F.R. § 35.136 (c).
Often the question arises in terms of who is responsible for providing the care and supervision of the service animal. The student? The school district? A third party? Pursuant to 28 C.F.R. § 35.136 (e), a school district or other public entity is not responsible for the care and supervision of the animal. The handler of the service animal can be either the student with a disability or a third party who has been properly trained to handle the service animal. The parent can decide whether the student or a third party will be the handler. The only requirement is that the handler is properly trained to handle/care for the animal. Most often, the handler will be the student. However, factors for consideration are the student’s age and whether the student is able to effectively control and handle the service animal.
Another common question that arises is whether a school district can deny a service animal due to concerns over allergies or fear of dogs. In accordance with the Dep’t of Justice, Civil Rights Div., ADA Requirements, Service Animals, concerns over allergies or fear of dogs are not valid reasons to deny access to an individual utilizing a service animal under the ADA. In the event an individual with allergies or fear of dogs is in the same location as the individual utilizing a service animal, the Department of Justice has asserted that both individuals must be accommodated, which could mean assigning the two individuals to different classrooms or different locations/rooms within the facility.
Lastly, liability concerns arise with respect to service animals. What if the animal bites someone? What if the animal causes damage to property? While New Jersey law does not specifically answer these inquiries, federal law and a recent district court case provide us with some guidance. Under 28 C.F.R. § 35.136(h), public entities are prohibited from asking or requiring an individual with a disability to pay a surcharge for their service animal. Therefore, a school district is unable to charge a student with a disability and/or the student’s parents a surcharge prior to admitting the service animal onto school premises.
A Florida district court in Alboniga v. Sch. Bd. of Broward County Fla., 87 F. Supp. 3d 1319 (S.D. Fla. 2015) found that a school district imposed an unreasonable surcharge when the school district’s policy required the student/parent to have and maintain liability insurance for the service animal. In Alboniga, the Southern District of Florida ruled that such a requirement was an unlawful surcharge in violation of 28 C.F.R. § 35.136(h) and mentioned that the cost of insurance was akin to charging a student to attend public school. Although the district court in Florida’s ruling is not binding on New Jersey school districts, it is prudent to check service animal policies, procedures, and forms to determine whether such insurance is required, which may be violative of the federal code’s prohibition against surcharges.
Connect with Capehart Scatchard