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INTRODUCTION

Service animals have been a part of society for a long time, but the services they provide have greatly expanded over the years. An animal can be trained to perform a variety of tasks to assist people with all kinds of disabilities. Sometimes the person’s disability and the tasks being performed are relatively obvious (e.g., a blind person using a seeing-eye dog for mobility, or a dog pulling a person in a wheelchair). Other disabilities and tasks are more difficult to perceive.

Attention to disabilities that are not immediately apparent has increased in recent years, due in part to the overwhelming number of men and women returning home from the Afghanistan and Iraq wars. In addition to physical impairments, many of these men and women suffer from mental disorders such as post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) and anxiety disorders as a result of their wartime experiences. Service animals can be trained to provide meaningful assistance to people who can no longer perform basic mental tasks due to a disability. For example, an animal may help its owner remember to take prescribed medication or alleviate the effects of an anxiety attack. Given the widespread lack of understanding about how service animals benefit people with these types of invisible disabilities, the Texas Legislature in 2013 enacted House Bill 489, amending state law with the explicit intention to expand the rights of people with disabilities to employ service animals in public.1

On the federal level, in 2010 the U.S. Department of Justice issued final regulations implementing the amended Americans with Disabilities Act (ADA). The regulations included new guidance regarding service animals under Titles II and III of the ADA, which apply respectively to state and local governments and public accommodations and facilities. However, the new federal guidance did not address service animals with respect to Title I of the ADA, which governs employment and reasonable accommodations for individuals with disabilities.
Here, then, is the public school administrator’s dilemma: a patchwork quilt of state and federal laws and regulations define the rights and duties of a person with a disability and the school district with respect to any service animal on district property. Administrators must understand the basic legal relationship between the school district and the person in order to determine which rules apply. When a person comes onto school district property with an animal, how are district employees to determine whether the animal is, in fact, a service animal? If a kindergarten teacher wishes to bring a dog into his classroom every day, are his rights the same as any member of the public? What about students? Should any animal be allowed to serve as a service animal, or does it have to be a dog? What about so-called “comfort animals”?

This article will discuss federal and state laws applicable to service animals belonging to district employees, students, and community members. We will also offer some practical tips to help school administrators approach service animal issues with confidence.

 

SERVICE ANIMALS UNDER STATE AND FEDERAL LAW.

As a general rule, animals are not usually allowed in public places, including schools. Service animals are a mandatory exception. Under the Americans with Disabilities Act (ADA), every entity that serves the general public, including public schools, must modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability, unless the entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.2 It is difficult to imagine a situation in which providing access to a service animal would fundamentally alter the nature of providing a public education.3 Therefore, districts must typically allow a person with a disability accompanied by a service animal access to most parts of district property.4 Both the ADA and state law define which animals qualify as service animals and the nature of the access that must be provided.

What is a service animal?

Not just any animal can be a service animal. Under the ADA, a service animal means a dog or a miniature horse that has been 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.5 The type of work that a service dog is trained to perform must be directly related to the person’s disability.6 In Texas, state statutes use the terms “assistance animal” and “service animal” interchangeably, defining this animal as a canine that is specially trained or equipped to help a person with a disability and that is used by a person with a disability.7

What access must be provided to an individual with a service animal?

Under the ADA, districts must allow an individual with a service animal access to all areas of a district’s facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.8 The Texas statutes define access even more broadly, stating that no person with a disability may be denied admittance to any public facility in the state because of the person’s disability or may be denied the use of an assistance animal.9 Clearly, service animals must be allowed on district vehicles as well as other facilities. A district also must not isolate or treat an individual with a service animal less favorably than others.

Under the ADA, four special assessment factors apply to miniature horses used as service animals. In determining whether to allow a miniature horse into a facility, the district shall consider:

1. The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
2. Whether the handler has sufficient control of the miniature horse;
3. Whether the miniature horse is housebroken; and
4. Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.10

Do service animals have to be certified or trained by specific people?

A quick internet search reveals many organizations ready and willing to provide certification documents to people who use animals to assist with a disability, including animals intended to provide emotional support or therapy. Official-looking documents do not prove that an animal is a service animal. In the bureaucracy of public education, administrators may be surprised to learn that paperwork is generally not necessary to establish a service animal’s access to district property or programs. In fact, the district may not require documentation from a person with a service animal, including proof of certification, training, or licensure.11

As with any animal trained to perform specific tasks, training a service animal takes time. It is crucial that a service animal be able to train and bond with its handler in public. Therefore, state law mandates that an assistance animal in training must not be denied access to any public facility when accompanied by an “approved” trainer. House Bill 489 in 2013 deleted certain training requirements from the Human Resources Code statutes defining service animals.12 As such, in the absence of a legal definition of who qualifies as an approved trainer, districts should admit service animals in training as a general rule.

How should service animals be treated by staff and students?

Harassment, assault, interfering with or harming animals is strictly prohibited.13 State law broadly defines “harassment” as any conduct directed at an assistance animal that impedes or interferes with, or is intended to impede or interfere with, the animal’s performance of its duties or places a person with a disability using a service animal, or a trainer, in danger of injury.14 Compliance with this rule may require extra care in the case of service animals in a classroom setting, particularly among younger students. A district should educate students about the difference between service animals and pets to ensure that students do not interfere with the animal’s work.

What are the duties of the service animal’s owner to care for the service animal?

It is not the district’s responsibility to supervise a service animal or to provide for its care or feeding.15 A service animal must be under the control of its handler (usually the person with a disability) and must typically wear a harness, leash, or other tether.16 An exception applies if either the handler is unable to use a harness, leash, or other tether due to a disability or the use of these items would interfere with the service animal’s safe, effective performance or work, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).17 A district may ask an individual with a disability to remove a service animal if the animal is out of control and the animal’s handler does not take effective action to control it.18 Fortunately, a district also has the right to ask for removal of service dogs that are not housebroken.19 For miniature horses only, the district may also inquire whether the animal is housebroken when determining whether it will be allowed access in the first place.20

Districts are prohibited from requiring service animals a fee or surcharge as a condition of access. However, a district may charge the individual for damages caused by the service animal.21 A district would be in a stronger legal position to do so if it has a general policy or practice of charging for damages to facilities, since it would be discriminatory only to charge people with service animals for damages.

 

ENFORCEMENT OF SERVICE ANIMAL LAW.

Under state law, discriminating against, or wrongly denying access to, an individual with a service animal is a misdemeanor crime punishable by a fine of up to $300 and 30 hours of community service.22 In addition, a district or district employees may be subject to civil penalties if sued by an individual with a disability under the ADA or state law.23 Under the state law as amended in 2013, someone who falsely represents that an animal is a service animal when, in fact, no training has actually been provided to the animal, may also be convicted of a misdemeanor.24

COMMUNITY

This is the simplest part. In general, school districts must allow any member of the public with a disability using a service animal to access district programs and property.

What questions can the district ask about the service animal?

When a person with a service animal comes onto district property or joins in a district program or activity, well-intentioned but uninformed employees may want to ask certain questions in order to ascertain whether the animal is, in fact, a service animal. Both state and federal laws limit the questions that school employees may ask in this situation. A district shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal: (1) whether the animal is required because of a disability; and (2) what work or task the animal has been trained to perform. However, a district may not make these inquiries about a service animal when it is “readily apparent” that an animal is trained to do work or perform tasks for an individual with a disability.25 In other words, if an animal is clearly acting as a seeing-eye dog or pulling a wheelchair, then district employees may not question the person about the animal as a condition of granting access. If, however, the animal’s function is not obvious, a district employee may ask the two questions above.

School districts are required by state law to be partners in education with a student’s parent, regardless of whether the parent has a disability.26 The U.S. Department of Education Office of Civil Rights (OCR) has determined that an Oregon district discriminated against a parent with a disability when it required a parent with a service animal to get extra approval before continuing to volunteer in her child’s classroom.27 The district required the parent to provide proof of insurance, vaccinations, and training documentation for her service dog. OCR found that these unnecessary and overly cumbersome requirements effectively excluded the parent based on her disability, and it ordered the district to allow the parent to volunteer with her service animal unless it could cite some legal justification to exclude the animal.

Under what circumstances could a district deny access to a service animal?

In general, a district may ask an individual with a disability to remove a service animal from district property if: (1) the animal is out of control and the animal’s handler does not take effective action to control it; or (2) the animal is not housebroken.28 If the service animal in question is a miniature horse, the district may determine that it cannot be accommodated based on the additional assessment factors listed above. If it appears reasonably likely that an animal will hurt someone, school officials may ask the individual with a disability to remove the animal. The ADA does not require the district to accommodate an individual when he or she poses a direct threat to the health or safety of others.29 The determination that an animal poses a threat, however, should be made based on an individualized assessment based on reasonable judgment relying on “current medical knowledge” or the “best available objective evidence.”30 In other words, a service animal should not be excluded based on assumptions but on observable evidence and verifiable medical concerns (such as a dog that foams at the mouth, appearing to be rabid). Another person’s fear of the animal, or even allergy, is not a valid reason to deny access to a service animal.

Note that if a district properly excludes a service animal, it must give the individual with a disability the opportunity to participate in the district’s programs, activities or services without the animal.31 This may require some creativity.

THE BOTTOM LINE ON COMMUNITY MEMBERS WITH SERVICE ANIMALS:

• Do not ask, “are you blind?” or other questions about the nature or extent of a person’s disability.
• If it is not clear why a person is accompanied by a dog, employees may ask: (1) whether the dog is required because of a disability; and (2) what work or task the dog has been trained to perform.
• Additional questions are permitted if the animal is a miniature horse.
• It is the handler’s job to control and care for the service animal. If the animal is out of control or not housebroken, employees may ask that the animal be removed but must still accommodate the person with a disability.

EMPLOYEES

As a general rule, districts are obligated to reasonably accommodate an employee with a disability.32 Employees do not typically have the right to demand a specific form of accommodation. Through the interactive process mandated by the ADA, the employer gathers relevant information and determines what accommodation can be reasonably offered that will enable the employee to perform his or her job duties.33 An accommodation that would unduly burden a district is not considered reasonable.34 Since the ADA specifically regulates service animals, however, the question arises whether an employee with a disability has a right to a service animal as the preferred method of accommodation. In other words, when an employee with a disability requests to use a service animal at work, may the district determine whether the animal is a reasonable accommodation?

The detailed service animal regulations come from Title II of the ADA, which addresses public facilities generally.35 An employer’s duties to reasonably accommodate an employee with a disability, however, are discussed in Title I of the ADA, which governs employment generally. Thus, it would appear that a district may still review whether allowing an employee to bring a service animal to school is a reasonable accommodation. According to this interpretation, the definitions and standards in Title II provide some guidance as to what is “reasonable,” but a district is not bound to the same restrictions that it must observe with respect to members of the public coming onto district property when making employment decisions.

On the other hand, if Title II of the ADA does not apply to public employees, then the Title II regulations also may not limit a disabled employee’s right to use an animal for assistance. It is possible that an animal could be a reasonable accommodation even if it does not strictly qualify as a “service animal” under the Title II regulations. Furthermore, state law may provide employees with greater rights. According to the Texas Human Resources Code, “no person with a disability may be denied admittance to any public facility in the state because of the person’s disability . . . [or] may be denied the use of . . . [an] assistance animal.”36 Arguably, this broad language applies to those employed in public facilities as well as to members of the public who visit them. (This is not to suggest that an employee in Texas has the right to bring just any animal to work—again, the definition of an assistance or service animal under state law is restricted to a canine that is specially trained or equipped to help a person with a disability.)

No court with jurisdiction over Texas public schools has specifically defined a public employee’s right to use a service or assistance animal under current law. When the law gets murky, a wise administrator gets conservative. So, looking conservatively at the laws together, a district could take this approach: when it is apparent why an employee or a potential hire uses a service animal, there would be no reason to require the employee to request a reasonable accommodation. Therefore, the district should probably not do so because it would risk violating the broad protections that may be granted under state law. The district could still employ an abbreviated version of the interactive process to determine the parameters of the animal’s access and any other disability-related accommodations that may be necessary to provide the employee in order to fulfill the essential functions of the job.
If an employee requests to use a service animal and it is not apparent what function the animal is trained to perform, the district should apply the reasonable accommodation analysis as it  would with any other employee. If the animal if is a dog that is specially trained to benefit the person’s documented or apparent disability, then the analysis should be weighted in favor of the service animal as a reasonable accommodation.

What about “comfort animals”?

The ADA specifically excepts from the definition of a service animal an animal that is intended to increase an individual’s comfort or sense of well-being: “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.”37 As a practical matter, it is not always obvious when an animal is trained to perform a specific task for a person with a mental disability, such as calming an individual with PTSD during an anxiety attack, or reminding someone with an intellectual disability when to take medication. When in doubt, administrators need to go back to the two protected questions and ask the employee whether the animal is required due to a disability and what task the animal is trained to perform. If the animal merely provides a general sense of comfort unrelated to a disability, then the animal does not meet the definition of a service animal under the ADA.

Again, state law may confer greater individual rights than federal law. Similar to the ADA regulations, the Texas Health and Safety Code definition of a service animal, which applies primarily to food service establishments and retail food stores, excludes an animal that provides only comfort or emotional support to a person.38 However, the Texas Human Resources Code does not address comfort animals. The term, “assistance animal,” used together with “service animal” throughout the Human Resources Code, could be interpreted as an indicator of legislative intent to define the help that an animal can provide a person with a disability more broadly than federal law. In addition, the Human Resources Code specifically lists PTSD as one of the disabilities that could make an individual eligible for a service or assistance animal.39 (Under federal law, the definition of a person with a disability is generally a person with an impairment affecting a major life activity, which could include PTSD, depending on the severity of the disorder.)40

A district should not categorically dismiss an employee’s request to use a dog as a comfort animal. Instead, administrators should use the interactive process to gather information about the employee’s disability-related needs and determine whether the animal is trained to perform a service that benefits those needs.

THE BOTTOM LINE ON EMPLOYEES WITH SERVICE ANIMALS:

• If it is obvious what service an animal is trained to perform for an employee with a disability, then requiring the employee to request a reasonable accommodation is not necessary and could lead to a claim against the district.
• If it is not clear what service an animal is trained to perform, start by asking the employee the two questions that are always permitted: (1) whether the service animal is required because of a disability; and (2) what type of work or task the animal is trained to provide.
• Document the interactive process using the district’s reasonable accommodation forms.
• Before denying an employee’s requested accommodation of a service animal, consult with an attorney to ensure the decision is legally defensible.

STUDENTS

A student’s right to bring a service animal onto school property must be analyzed differently than the rights of employees or other members of the public. That is to say, the rights and obligations of the student and the district are partly defined in Title II of the ADA, discussed above, however some distinctions are noteworthy based on the special relationship between students and public schools.

Can a service animal be excluded if the district believes that it will interfere with the student’s education?

Not likely. As stated above, districts must make an exception to their policies to permit the use of service animals by people with disabilities unless to do so would cause a fundamental alteration in the nature of the service, program or activity.41 Districts that argue a service animal will fundamentally alter a student’s educational program are probably going to lose. For example, a North Carolina district refused to allow a student to bring a service dog where the district had determined that the dog would interfere with the student’s progress toward the goals in the individual education program (IEP).42 The district argued that the dog would impede the student’s goal of becoming more independent. OCR determined, to the contrary, that the dog would further the student’s goals by calming his aggression and preventing him from running away.

What if a student is not capable of handling the service animal, due to young age or severe disability? Is the district obligated to provide a handler?

In most situations, no. The district is not responsible for the care or supervision of a service animal under the ADA.43 If a child is unable to handle a service animal, then typically the parents would need to provide a handler. If a handler is not provided, then the service animal can be prohibited from coming to school.44 An exception may apply if the district determines that a service animal is necessary for a student with a disability to receive an appropriate education. (This situation is discussed in more detail below.)

Regardless of whether a student is capable of handling a service animal, district employees should beware of making comments that might be construed as a predetermination about whether the service animal should be allowed. In a California district, OCR emphasized that it would violate Title II of the ADA for districts to prohibit service animals or to lead parents, students or the community to believe that service animals are not allowed.45 In that case, the parents of a student with a visual impairment filed a complaint with OCR after an orientation and mobility teacher’s comment during an IEP meeting that it “would not be possible” for the student to have a service animal. Ultimately, however, OCR found that the teacher’s statement was not evidence of a Title II violation.

Is a child with a mental disability, such as autism or an anxiety disorder, entitled to a service animal for companionship or emotional support?

The ADA does not entitle a student to bring an animal to school solely for emotional support. When it is not immediately apparent what service the animal is trained to perform, school officials may ask the student, or the student’s parent, if the animal is required because of a disability and what work or tasks the animal has been trained to perform.46 Some examples of tasks that a service animal may be trained to perform for a child with a disability that may not be immediately apparent include: alerting and protecting in the event of a seizure; alerting to the presence of allergens; assisting with balance or stability; and preventing or interrupting impulsive or destructive behaviors.47 The scope of services that an animal may be trained to provide is broad, but parents must be able to point to at least one specific task that the animal is trained to perform for the student with a disability. If parents cannot do this, it is likely that the animal is a pet rather than a service animal.

Nonetheless, districts should be cautious about excluding emotional support animals. In its comments to the 2010 ADA regulations, the U.S. Department of Justice noted that, while emotional support animals are not service animals as defined by the ADA, they may be permitted as a reasonable accommodation under other law.48 For example, an emotional support animal may qualify as a reasonable accommodation if necessary in order for a student to receive a free appropriate public education (FAPE). Both Section 504 of the Rehabilitation Act (Section 504) and the Individuals with Disabilities in Education Act (IDEA) require the provision of FAPE to students with eligible disabilities.49 In 2008, OCR found that a California district violated Title II of the ADA and Section 504 of the Rehabilitation Act by excluding a student’s dog from school.50 In that case, OCR found that the district excluded the animal as a health and safety risk to others instead of conducting an individualized inquiry as to whether the dog was a trained service animal and whether its function served the student’s disability-related needs. Furthermore, OCR determined that even if the animal did not strictly qualify as a service animal, the district should have considered whether the student would receive a FAPE without the animal before refusing to allow the animal at school.51

What questions can the district ask about a student’s service animal?

Again, the ADA limits a district employee’s ability to inquire about a student’s service animal. As with any member of the public, if the animal’s function is not obvious the parent or student may be asked whether the animal is required because of a disability and what work or task the animal has been trained to perform.52 If it is determined that the animal is a service animal, the inquiry must stop. If it is determined that the animal is not a service animal, however, the district should continue to investigate whether the animal could qualify as a reasonable accommodation, or be required in order to provide the student a FAPE, under Section 504 or IDEA. In this individualized inquiry, district staff familiar with the student, such as the ARD committee or 504 team, should ask questions designed to identify what specific function the animal performs and how the function specifically benefits the student’s disability-related needs. Clearly, this is a delicate task given the legal protections for service animals and the potential liability under state and federal laws. Districts need to proceed carefully, keeping lines of communication with parents open, and documenting the basis for decisions.

What if other students in the class are allergic to the service animal?

Allergies or fear of animals are generally not valid reasons to deny a service animal. The U.S. Department of Justice advises that if a person afraid or allergic to a service animal must spend time in the same room or facility as a person who uses a service animal, such as might occur in a classroom, both individuals should be accommodated by assigning them to different rooms in the same facility or different locations in the room.53 Recognizing that this advice does not give school district officials much to work with, it is our hope that, with good common sense and communication skills, teachers and administrators can find compromises that meet both students’ needs in this tricky situation. The district should attempt to find a solution that does not penalize either the student with the service animal or the person with fears or allergies.

Could a district be obligated to provide a student a service animal in order to meet its duty to provide FAPE under the IDEA?

It depends on whether the student’s Admissions, Review and Dismissal (ARD) Committee has determined, in accordance with the procedures set out in the IDEA and its implementing regulations, that the service animal is required to assist the student with a disability to benefit from special education.54 The IDEA regulations specifically refer to service animals only once: when defining orientation and mobility services that may qualify as a related service for “blind or visually impaired children . . . to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community.”55 The student’s ARD Committee, which includes parents and school officials, should weigh whether a service animal is required as a related service in order for the student to receive FAPE. If the animal is determined to be a related service, then it must be included in the IEP and provided in accordance with the IEP at public expense and at no cost to the parents. On the other hand, if it is not determined to be necessary for the student to benefit from special education and not listed in the IEP, there is no requirement that the district provide the service animal. For example, a hearing officer in Florida found that there was no requirement that a district include a service animal in an IEP where the animal was trained to provide comfort to a student in the event of a seizure, but this service could also be provided by the student’s one-on-one aide. 56 Note, however, that the district may still need to allow the animal to accompany the student to school as an accommodation under Section 504.

THE BOTTOM LINE ON STUDENTS WITH SERVICE ANIMALS:

• If the student has a disability and the animal meets the definition of a “service animal,” then let the dog in.
• If the animal does not strictly qualify as a service animal, go on to consider whether allowing the animal in school could be necessary to provide FAPE under Section 504 or IDEA. This does not mean a district should admit types of animals (e.g., monkeys, turtles) that would not qualify as a service or assistance animal—arguably that would not be a reasonable accommodation.
• If a student’s ARD committee determines that a service animal qualifies as a related service necessary for the student to receive FAPE, the animal should be included in the IEP and provided at no cost to parents. This is a rare situation, but the district should not categorically deny the possibility. If parents request a service animal from the district, call an attorney.
• Other people’s fears or allergies are not a reason to deny a service animal. Try to work out an arrangement with the relevant parents and/or employees to address these issues fairly.

CONCLUSION

Faced with the complexities of this evolving legal issue, we think you will agree with writer and humorist Patricia Marx when she observed of therapy animals, “One person’s emotional support can be another person’s emotional trauma.”57  Faced with the prospect of animals in a previously human-only area, administrators need not panic as long as they remember to: maintain an open mind; ask the permitted questions; and, when in doubt, call an attorney.

ENDNOTES

1. See Tex. Leg. House Research Organization Bill Analysis, HB 489 (April 30, 2013), available at http://www.hro.house.state. tx.us/pdf/ba83r/hb0489.pdf#navpanes=0 (citing supporters of HB 489 stating that the bill would promote the rights of “people with disabilities such as [PTSD] or an intellectual disability who use assistance animals,” which was important in light of “two recent wars [that] have yielded a wave of veterans who grapple with disabilities that often are not fully apparent or appreciated by the public.”)
2. 28 C.F.R. § 35.130(b)(7), .136(a).
3. See, e.g., Tamara v. El Camino Hosp., 964 F.Supp.2d 1077 (N.D. Cal. 2013), (finding hospital failed to show that admitting service dog into sensitive psychiatric unit would fundamentally alter the nature of facility or pose a direct threat to health or safety of others.)
4. Under the U.S. Food and Drug Administration’s Food Code and state law, special rules govern service animals in the areas where food is prepared. See FDA Food Code §§ 2-403.11, 6-501.115; Tex. Health & Safety Code § 437.023(a).
5. 28 C.F.R. § 35.104, .136(i).
6. 28 C.F.R. § 35.104.
7. Tex. Hum. Res. Code § 121.002(1). 8. 28 C.F.R. § 35.136(b).
9. Tex. Hum. Res. Code § 121.003(c), (e), (i). 10. 28 C.F.R. § 35.136(i).
11. 28 C.F.R. § 35.136(f).
12. See HB 489, 8rd Leg., R.S., §§ 2,3, amending Tex. Hum. Res.
Code §§121.002(1), 121.003(i).
13. Tex. Hum. Res. Code § 121.002, .003(j)-(l).
14. Tex. Hum. Res. Code § 121.002, .003(j)-(l).
15. 28 C.F.R. § 35.136(e).
16. 28 C.F.R. § 35.136(d); Tex. Hum. Res. Code § 121.005.
17. 28 C.F.R. § 35.136(d).
18. 28 C.F.R. § 35.136(b).
19. 28 C.F.R. § 35.136(b).
20. 28 C.F.R. § 35.136(i).
21. 28 C.F.R. § 35.136(h).
22. Tex. Hum. Res. Code § 121.004(a).
23. See Pena v. Bexar County, Tex., 776 F.Supp.2d 675, 682 (W.D. Tex. 2010) (noting that Title II of ADA authorizes suits by private citizens for monetary damages against public entities that violate the ADA); Tex. Hum. Res. Code § 121.004(b).
24. Tex. Hum. Res. Code § 121.006.
25. 28 C.F.R. § 35.136(f); Tex. Hum. Res. Code § 121.003(l).
26. Tex. Educ. Code § 26.001.
27. Hillsboro (OR) Sch. Dist. 1J, 59 IDELR 82 (OCR 2012).
28. 28 C.F.R. § 35.136(b).
29. 28 C.F.R. § 35.139; see Rose v. Springfield-Greene County Health Dept., 668 F.Supp. 2d 1206 (W.D. Mo. 2009) (holding that monkey was not a service animal and Health Department conducted an individualized assessment to determine that it posed a health and safety threat).
30. 28 C.F.R. § 36.208(c); see also Pena v. Bexar County, 726 F.Supp.2d at 685 (discussing application of Title III regulations to a public entity’s duty to accommodate individuals with service animals under Title II.)
31. 28 C.F.R. § 35.136(c).
32. Griffin v. United Parcel Service, Inc., 661 F.3d 216 (5th Cir.
2011); see TASB Policy DAA(LEGAL).
33. See Id. at 224 (noting that when a qualified individual with a disability requests a reasonable accommodation, the employer and employee should engage in flexible, interactive discussions to determine the appropriate accommodation) (citation omitted).
34. 42 U.S.C. § 12112(b)(5)(A).
35. 28 C.F.R. § 35.136.
36. Tex. Hum. Res. Code § 121.003(c). 37. 28 C.F.R.§ 35.104.
38. Tex. Health & Safety Code § 437.023. 39. Tex. Hum. Res. Code § 121.002(4)(G).
40. 29 C.F.R. § 29.1630.2(g).
41. 28 C.F.R. § 35
42. Catawba County (NC) Schs., 61 IDELR 234 (OCR 2013).
43. 28 C.F.R. § 35.136(e).
44. See 28 C.F.R. § 35.136(d).
45. Pasadena (CA) Unified Sch. Dist., 60 IDELR 22 (OCR 2012).
46. 28 C.F.R. § 35.136(f). See TASB Policy FBA(LEGAL).
47. 28 C.F.R. § 35.104; see e.g. K.D. v. Villa Grove Comm. Unit Sch.
Dist. No. 302 Bd. of Educ., 936 N.E. 2d 690 (Ill.App. 2010) (affirming under state law that dog was service animal individually trained to perform tasks for benefit of autistic elementary school student, including preventing student from running away, calming during temper tantrums and promoting individual mobility.)
48. See Fed. Reg., Vol. 75, No. 178 at 56166 (Sept. 15, 2010) (citing Overlook Mutual Homes, Inc. v. Spencer, 666 F.Supp.2d 850 (S.D. Ohio 2009) for the proposition that “emotional support animals that do not qualify as service animals under the Department’s title II regulations may nevertheless qualify as permitted reasonable accommodations for persons with disabilities” under the Fair Housing Act and the Air Carriers Access Act).
49. See 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17 (generally defining FAPE under IDEA as special education and related services provided at public expense in accordance with a student’s IEP); also see 34 C.F.R. § 104.33(a) (requiring a recipient of federal funds that operates a public education program to provide a FAPE to each qualified person with a disability in the entity’s jurisdiction, regardless of the nature or severity of the person’s disability.)
50. Bakersfield (CA) City Sch. Dist., 50 IDELR 169 (OCR 2008).
51. Id.
52. 28 C.F.R. § 35.136(f); Tex. Hum. Res. Code § 121.003(l).
53. See U.S. Department of Justice, Civil Rights Division, 2010 ADA Guidance at http://www.ada.gov/service_animals_2010.htm.
54. See 34 C.F.R. § 300.34(a) (defining “related service” as “transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education.”)
55. 34 C.F.R. § 300.34(c)(7).
56. See Collier County Sch. Dist., 110 LRP 7471 (SEA FL 09/15/09) (citing Bd. of Ed. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S.176 (1982) for the proposition that the IDEA does not authorize parents to choose the methodology of providing educational and related services, thus service animal did not have to be included in IEP); see also Cave v. East Meadow Union Sch. Dist., 480 F.Supp.2d 610, 47 IDELR 162 (E.D.N.Y. 2007), aff ’d,
514 F.3d 240, 49 IDELR 92 (2d Cir. 2008) (denying injunction to allow student to bring service animal to class where district sufficiently accommodated student with a hearing impairment).
57. Marx, Patricia, “Pets Allowed,” The New Yorker (October 20, 2014).