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Bringing Service Animals to School: Some Tips for Parents By Adam Kasanof While some schools may welcome service animals, others don't. Here are some things that you, as a parent, can do to help make sure that your child can bring their service animal to school with them. You'll generally want to take these steps in this order, going to the next step only if the previous step failed: - Get proof that the animal is a service animal
- Talk to officials at your child's school
- Make a written complaint to your child's school
- Make a written complaint to your local school system
- Complain to a state, local, or federal agency
- Sue the school or school system
Note: in order to help ensure that your child can bring their service animal to school: - The child needs to be able to handle the service animal effectively
- The service animal needs to be trained to assist the child, and socialized to behave appropriately around other children
- The service animal needs to behave well
- The service animal needs to be clean and well maintained
- The service animal needs to be housebroken
Note: while the law does not require that a service animal be a dog, if your child's service animal is not a dog, you will likely have a lot more trouble getting school authorities to allow your child to bring it to school. Important: - In all your dealings with school officials, be polite. Don't act upset if you face resistance; you need to be (and appear) reasonable at all times.
- Remember that you are trying to build an ongoing, favorable working relationship with your child's school. Your child will be spending a lot of time there. So avoid discourteous words or behavior that can sour this important relationship.
1. Get Proof That the Animal is a Service Animal Back to top
Before making formal or informal complaints to schools or agencies, or suing anyone, get clear, documented proof that the animal is a service animal. You should: - Get a letter from a physician or psychologist specifically stating that your child has a disability, and should use a service animal.
A formal letter prescribing the service animal for your child is very important.
- Ideally, the letter would come from a physician specializing in the type of disability the child has (a psychiatrist for a psychological disability, a neurologist for a neurological disability, etc.), but it could also come from the child's regular physician. In that case, the physician should say that he/she consulted the child's psychiatrist, psychologist, or other specialist, if applicable. While the letter could come from a psychologist, if the child has a psychological disability, the more credentialed the person writing the letter, the more weight it will carry with school officials, government agencies, and courts. So it's usually best if the letter comes from a physician.
- Most physicians and psychologists won't know the best way to write this letter to support your child's legal rights most effectively. So, give them at least an outline of what the letter should say. (If you feel confident in doing so, and the physician or psychologist will agree, you could even draft a proposed letter, and e-mail or fax it to them.)
- The letter should be on professional letterhead, and not handwritten on a prescription pad
- The letter should say clearly:
- That the writer is a physician (or psychologist), and his/her specialty, if appropriate (psychiatrist, neurologist, etc.) If the writer is the child's regular physician, the letter should say that the physician has consulted the child's specialist (psychiatrist, neurologist, etc.) or psychologist, if applicable.
- That your child has a disability. Note: you are not legally required to indicate what the child's disability is, but as a practical matter, the letter will usually be more convincing if you do. Also, it's unlikely that teachers at your child's school will never become aware of what the disability is.
- That the animal works or performs tasks that alleviate symptoms of the disability, or provide important disability-related assistance. This where your physician should be quite clear in explaining why it is crucial for disability-related reasons for your child to be accompanied by the service animal at school, and why not allowing that to occur would be detrimental to the child. In addition to the disability related tasks or services performed, you may be able to list, as advantages or benefits to the child from using the service animal at school, that the animal allows the child to function independently, and improves the child's self-esteem, and that not allowing the child to take the service animal to school requires the child to be more dependent on others, and weakens the working relationship between the child and the service animal. Note: the letter should not use the term "pet" to refer to the service animal, but should always refer to it as a "service animal."
- You always want to be in charge of where your papers and records go. So:
- Do not have the physician or psychologist send the letter directly to the school; it should go to you, because you need to see it first to ensure that it is correct.
- Do not sign a blanket release for all of your child's medical records if the school asks for it. Say instead: "I'll be glad to provide a doctor's letter instead; if you need specific information, I'll be glad to convey the request to the doctor." The school does not need to know your child's whole medical or psychological history.
- Generally, do not authorize the physician or psychologist to speak to the school directly, especially if you are not part of the conversation.
- Make sure that the service animal has been individually trained to do work or perform tasks for your child.
- You can train a service animal yourself. It does not have to be professionally trained. But if your child's animal has been professionally trained, get written documentation from the trainer or training school stating that the animal has been trained to assist a person with a disability. (Some trainers and schools even issue photo ID's for service animals.) If you trained the animal yourself, you may want to get a letter from a trainer or training organization confirming that the animal is trained to help a person with a disability.
Note: when the child first goes to school with the service animal, it might be very helpful to have the trainer accompany the child for a few days. - The only written U.S. government regulation clearly defining "service animal" is a Department of Justice regulation interpreting the Americans with Disabilities Act. The regulation (Title III Regulation 28 CFR §36.104) defines a "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 rescue work, pulling a wheelchair, or fetching dropped items. - Note: The FAA has allowed people to be accompanied by untrained emotional support animals on airplanes, and HUD requires landlords to allow tenants to have untrained emotional support animals, despite "no pets" policies. The U.S. Department of Justice has always held that a service animal must be trained, but that the definition does not require that the animal be for a person with a physical disability.
- An animal can still be a service animal even if the service it provides isn't on the list of services above. But, while few schools would argue that a guide dog for a blind child isn't a service animal, you may meet more resistance if the animal provides a service that isn't on the list (e.g., assisting a child with autism). That's why it's important to document that the animal is prescribed by a physician or psychologist, and individually trained to provide assistance, to show that it clearly meets the requirements of the regulation. The animal doesn't have to be professionally trained, but it's always helpful to work with a professional trainer to establish that animal is trained.
- Have documentation from a veterinarian that the service animal is in good health and properly vaccinated, and make sure that the animal is properly licensed, if required. (And that license may be free. See below.)
- Although such documentation it is not legally required, according to the Department of Justice publication "Commonly Asked Questions About Service Animals in Places of Business" (http://www.usdoj.gov/crt/ada/qasrvc.htm), this documentation helps confirm that the animal is safe to be around other students at the school.
- If possible, get an exemption from local and state license fees for the service animal.
- Most states and localities require a license for dogs. But most states and localities do not require people who use service animals to pay these license fees. So contact your local or state authorities to see if you can get your child's service animal a license without paying a fee. This no-fee license is recognition by your state or local government that the animal is a service animal.
- Have the service animal wear equipment that clearly identifies it as a service animal.
- A special harness (such as those that guide dogs wear), a special collar, signs that say: "Service Animal," packs, patches, jackets, and the like, all help to show that animal really is a service animal.
2. Talk to Officials at Your Child's School Back to topOnce you have the documentation above, you can discuss the issue more effectively with school officials. - Important: Make notes of any conversations that you have with school officials; include the name of the person you talked to, the date, and the time. It's most important that you write down what school officials say, especially any discriminatory comments like: "I don't care, there aren't going to be any service animals in this school," or any threats that are made. Such threats violate the Americans with Disabilities Act (the "ADA.")
Be courteous, and explain that: - Your child has a disability, and needs to use a service animal
- The animal has been prescribed by a physician or psychologist (provide a copy of the letter) to assist your child with their disability
- The animal has been trained to act as a service animal (provide a copy of a letter from the trainer or training school, if the animal was professionally trained; if you trained the animal yourself, you may want to get a letter from a trainer or training organization, saying that the animal is trained to assist a person with a disability).
- The animal is properly licensed and vaccinated (though you are not legally required to state this), and provide a copy of license documents showing that the animal has a no-fee service animal license (if a no-fee license is available), and a statement of good health from a veterinarian (though you are not legally required to provide this, either).
- If you need to, point out to school officials that the Centers for Disease Control's proposed infection control guidelines allow the use of service animals in hospitals, so you do not see how your child's healthy service animal would be unreasonably hazardous in a school. You can review the CDC's guidelines here:
www.cdc.gov/MMWR/preview/mmwrhtml/rr5210a1.htm - If school officials say that your child's service animal may affect other students with allergies, suggest that your child could be put in different classes from those students, seated on different sides of the classroom from them, etc. Offer to consider other suggestions officials may have. But if you have to, point out that your child has just as much right to an education as a child with allergies, and that it is the legal responsibility of the school to provide an appropriate education to both of them.
- The animal is good-natured, and safe to have in a school environment around children
- The animal will not require any care by school officials, and that your child will be responsible for giving the animal food and water, taking it out to relieve it, cleaning up after it, etc. (Ideally, a trainer would accompany the child to school for a few days initially.)
- Your child has a legal right to use a service animal under federal law (The Americans with Disabilities Act or "ADA," and/or The Rehabilitation Act of 1973), and under state and local law.
- Check with state and local human rights or civil rights agencies, educational or disability advocacy groups in your state or locality, or a competent disability or education lawyer to be sure that state or local laws allowing service animals do apply to schools. For more information on the ADA and the Rehabilitation Act, see the rest of this article.
- Note: even if your child has an Individual Education Plan ("IEP") as part of a special education program pursuant to the Individuals with Disabilities Education Act ("IDEA"), use of the service animal does not have to be included in the IEP in order for your child to use a service animal. The ADA and the Rehabilitation Act are civil rights statutes, and your child is entitled to their protection regardless of whether they are in a special education program, or what that program consists of. You aren't limited to complaining about, or suing over, your child's use of a service animal under the terms of IDEA. In fact, you will probably not want to complain or sue under IDEA, since that will limit or delay your rights to sue under the ADA or the Rehabilitation Act, or other federal laws. (See the discussion of IDEA under item #6, "Sue the School or School System," below.)
3. Make a Written Complaint to Your Child's School Back to topIf informal discussion doesn't resolve the issue, you may then want to make a complaint in writing to the principal of the school. - Be polite; this is not the time for a rant or a crank letter. If you have to complain to another agency about the school, or sue, this letter will be evidence for (or against) you.
- Lay out the facts clearly. Mention each point listed under #2, above, and include copies of the written documentation for each point.
- Say that you request that, as a reasonable modification of the school's policy to accommodate your child with a disability, that the school allows your child to bring their service animal to school.
- Say that you would prefer to resolve the matter informally, but if it cannot be promptly resolved, you are prepared to make a complaint to the school system or board of education, or other appropriate agency, or to take legal action against the school.
- Make a photocopy of the letter and all documentation that you are enclosing with it.
- Send the letter by certified mail, return receipt requested.
- Keep the copy in a safe place.
4. Make a Written Complaint to Your Local School System Back to topIf the school still refuses to allow your child to bring his/her service animal to school, before you complain to a state, local, or federal agency, or sue the school, consider making a brief, written complaint to an appropriate person at the school system. - Note: it is very important that the complaint go to the right person in the school system. This is not necessarily the low-level clerical employee officially designated to receive letters from disgruntled parents and throw them in a big pile for an eventual reply. You do not want your complaint sitting in some bureaucrat's "in" box. You want your complaint to go to someone with the authority and good judgment to act on what you write, or refer it to someone else who will.
- In order to find the right person to send your complaint to, think about talking to:
- The school system or board of education itself
- Local parents' associations
- Disability rights and educational advocacy groups and legal clinics
- A competent education or disability rights lawyer
- If all else fails, you can send your complaint to the chairman of the board of education, or the schools chancellor/superintendent of schools.
- You should also think about getting help from a competent lawyer in drafting your complaint letter. It should not be a difficult letter for the lawyer to write, and should not be too expensive.
- Think carefully about whether you want to note in your letter that you are sending copies of it to the U.S. Department of Justice or Department of Education. Sending copies to these agencies conveys that the matter is serious, and that you will not go away. But it also may escalate the tension of the situation, and work against resolving the situation without a formal complaint to one of those agencies. And it may not help your ongoing relationship with your child's school.
- In your letter:
- Be courteous.
- Lay out all the facts and information that you previously provided to the school.
- Provide copies of correspondence you had with the school.
- Note who you spoke to and wrote to at the school, and when.
- Indicate that you're willing to be reasonable, but that you need to get the issue resolved promptly, or else you will make a formal complaint to the appropriate state agency or federal agency, or take legal action against the school system.
- Make a photocopy of the letter and all documentation that you are enclosing with it.
- Send the letter by certified mail, return receipt requested.
- Keep the copy in a safe place.
5. Complain to a State, Local, or Federal Agency Back to top - Complaints to State and Local Agencies
Sometimes, a complaint to a state or local agency (civil rights commission, human rights commission, attorney general's office, etc.) may be faster and more efficient than complaining to a federal agency, or suing. This isn't always true, though; some state and local agencies have very few people or other resources to investigate, or act on, complaints. Also, some state and local laws require that you make a complaint to a state human rights commission or other agency before you can sue under those laws. Also, sometimes the decisions of state and local agencies are politically driven. - Complaints to Federal Agencies
You can also make complaints to federal agencies. What agency you complain to will depend on what law you are complaining under, and whether the school is a public school or a private one. - If you are making a complaint against a public school, you would complain to the U.S. Department of Education.
- If you are making an ADA complaint against a private school, you would complain to the U.S. Department of Justice. If the school receives federal funding, you could also complain to the Department of Education under the Rehabilitation Act.
- Note: if one agency is handling a complaint you make against a school, the other agency probably will not handle the same complaint.
- Note: the ADA has some exceptions for religious schools.
- It may take quite a while for either of these agencies to act on your complaint. They may also decline to accept your complaint if they do not think it is legally valid.
- Note: you do not have to complain to a federal agency before you can sue under the Americans with Disabilities Act ("ADA") or Section 504 of the Rehabilitation Act of 1973 ("The Rehabilitation Act").
- Note: if you file a complaint with the Department of Justice, they may offer you mediation. It's generally a good idea to take it, since it's free, and usually much faster than suing. It generally gets good results. But mediation only happens if both parties agree, so if the school must agree to accept it, also.
6. Sue the School or School System Back to top - Before You Sue
- Before you sue, it's important that you consult a competent lawyer who is familiar with disability law in your state, in order to determine what court you should sue in, and what law(s) you should sue under.
- Sometimes it's better to sue in state court, and sometimes it's better to sue in federal court. Often, however, a lawyer will want to sue in whatever court they're most familiar with, rather than the court that's best for the case. So you need a lawyer who is comfortable with litigating in either type of court. And you need someone who specializes in civil rights issues. If the issue is a psychiatric service animal, you might want to consider contacting the Bazelon Center for Mental Health Law (www.bazelon.org). They can provide some assistance, and/or help in finding a knowledgeable attorney.
- Usually, if you are suing under a federal law (such as the ADA), you will be suing in federal court, and if you are suing under a state law, you will be suing in a state court. However, you may sometimes be able to sue under a federal law in a state court, or under a state law in a federal court. That's why it's important to have a capable lawyer who can help you determine the best laws to sue under, and what court to sue in.
- If you'd like see a California service animal case that was decided favorably on behalf of a student, you can look at Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (E.D. Cal. 1990). It should be available (for a fee) from the Lexis or Westlaw online legal research sites, or in a law school or courthouse library open to the public. (Ask the librarian how to look up the case.)
- Different Laws You Can Sue Under
There may be several different laws that you can sue under: - There may be several different laws that you can sue under:
- State and Local Anti-Discrimination Laws
Many states and cities have laws that prohibit discrimination against people with disabilities, and/or laws or regulations that specifically authorize the use of service animals. Many of these laws give you the right to sue to enforce your rights. In some states (like California) you might do best suing under state law, instead of federal law. You need to find out: - What rights these laws or regulations provide
- How effectively these laws or regulations are enforced by state or local authorities, such as state human rights agencies
- Whether, and under what circumstances, these laws or regulations give you a right to sue. For example, some state laws may require that you make a complaint to, and receive a decision on that complaint from, a state human rights commission or other agency before you can sue.
- Federal Anti-Discrimination Laws
- The Americans with Disabilities Act of 1990 ("The ADA") (42 U.S.C. 12101)
The ADA applies to both public and private schools, though it does have some exceptions for religious schools. Under the ADA, your child has a legal right not to be discriminated against on the grounds of disability, and that includes the right to use a properly trained, properly controlled, service animal. If your child's school will not allow your child to use a service animal, then you can consider suing them under the ADA. - Section 504 of The Rehabilitation Act of 1973 ("The Rehabilitation Act," or the "Rehab Act") (29 U.S.C. 794)
Section 504 of The Rehabilitation Act applies to public schools, and private schools that receive federal funds (and many private schools do). Unlike the ADA, it does not have any exceptions for religious schools. The Rehabilitation Act has similar provisions to those of the ADA, and is generally interpreted similarly. Note: it may be easier to sue for damages (i.e., cash compensation) under the Rehabilitation Act than under the ADA. But, remember that you are trying to maintain a good working relationship with your child's school, and the more damages you seek, the more strained that relationship will be. - Individuals with Disabilities Education Act ("IDEA")(20 U.S.C. 1400 et seq.)
Though you probably won't want to, you may be able to sue under IDEA. IDEA (which is usually thought of in the context of special education) requires every state to provide a free, appropriate public education ("FAPE") to every school age child with a disability. And if your child's public school won't provide such an education, you have the right to sue. But there is a very serious drawback to suing under IDEA. Before you can sue under IDEA, you must first make a complaint under IDEA to the school system. You must then go through whatever hearing process the school system has, including any appeals process, until you have gone through all possible hearings and appeals. Only then can you sue. (This is called the "administrative exhaustion" requirement: you have to use up, or "exhaust," all the different complaint procedures that the agency has before you can sue them.) And once you have made a complaint to the school system under IDEA, if the issue that you complained about could be handled under IDEA, then you can't sue under either The ADA or The Rehabilitation Act until you have gone through the whole complaint process, exactly the same as if you wanted to sue under IDEA. The Bottom Line
You need to talk to a competent lawyer before you start suing.
Where's the Department of Education?
The U.S. Department of Education hasn't yet issued guidelines and policies on service animals in schools. While no one can predict what their position will be, there are very good legal reasons why they should encourage schools to allow service animals. - The American with Disabilities Act makes no special exception for public (or most private) schools.
- Virtually all other public facilities must accommodate persons with disabilities who have service animals.
- The U.S. Department of Justice has settled cases with schools who were required to allow teachers to use service animals.
- Here's an example of one such settlement:
http://www.usdoj.gov/opa/pr/2001/December/01_crt_668.htm - If the Department of Education fails to support the rights of students to use service animals, they'll be creating an "Alice in Wonderland" world in which teachers must be allowed to use service animals, while students can't. So, a 17 year old student teacher would be allowed to bring a service animal into the classroom, but a 17 year old student at the school could not. There is no logical way to argue that a teacher's service animal is always safe and appropriate for use in a school, while a student's service animal never is.
- As noted above, the CDC has accepted the idea of service animals in hospitals.
- What possible argument could there be for why a service animal is safe in a hospital, but not in a school?
- Many state and private colleges, and many public and private schools, already have policies allowing service animals, and have not had significant problems from these policies.
- If these colleges and schools can allow service animals, how can anyone logically argue that other colleges and schools can't (or shouldn't) do the same?
- The Department of Education's own employees, at all levels, are allowed to use service animals.
- Would the Department really want to explain to the disability community (and to "The New York Times") why education administrators in Washington (paid with tax dollars) may have service animals, but the students throughout America may not?
Note: Adam Kasanof is a lawyer admitted to practice in the State of New York. Nothing in this article constitutes legal advice.
You can contact him at: akasanof@aol.com
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