Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I had a weird experience the other day that I need to share with you. A family new to the district came by to enroll their 4th grade daughter, and they stopped in to see me. I was delighted to welcome the newcomer to our happy little school. However, I was not happy to see her “best friend,” Woofy. I politely told the family that we do not allow dogs in our school, but they pushed back immediately. “Woofy,” the dad said, “is more than a dog, much more. Woofy is a service animal who provides emotional support for our daughter.”

I did my best to be polite, but Woofy was out of control, running around my office, sniffing everything in sight, and even licking my face. “Isn’t he great?” the dad asked rhetorically. “He brings such joy and comfort to our little girl.”

I admit that I am a cat person, but I am not anti-dog per se. However, I can’t imagine letting this “Woofy” creature into my school. Can I tell the family that Woofy belongs in the dog house? Please email me your answer, because the daughter is starting school tomorrow.

Thank you,
Dog Be Gone

Dear Gone:

While Legal Mailbag must question your affection for cats, your judgment on Woofy is right on. To be sure, service animals must be permitted in our schools in some circumstances. Absent more information, however, you need not permit Woofy into your school as a service animal for at least two reasons.

First, the Woofy you describe does not meet the definition of a “service animal” under the Americans with Disabilities Act. The ADA broadly protects the right of an individual with a disability to have a service animal; the law and regulations provide that schools must permit service animals in all areas open to students. Moreover, school officials are not permitted to request documentation relating to the animal’s training, certification, registration, and/or licensure. However, the ADA permits school officials to ask two questions (and two questions only) in situations where it is not obvious that the animal is a service animal: 1) “Is the dog a service animal required because of a disability?” and 2) “What work or task has the dog been trained to perform?” See U.S. Dept. of Justice, ADA Revised Requirements: Service Animals. Here, the dad described Woofy as providing emotional support for his daughter (more on that later), which is not a task or special work Woofy has been trained to perform.

The ADA requirements for service animals present additional problems for Woofy. A service animal may be excluded from school if it is disruptive and the handler does not take effective action to control it. As regards disruptive behavior by the service animal, federal law requires service animals to be harnessed, leashed or tethered, unless such devices interfere with the animal’s work. Federal guidance, however, provides latitude for determining control. See U.S. Dept. of Justice, Frequently Asked Questions about Service Animals and the ADA, at Question 27. For example, a provoked animal or one that barks intermittently may not qualify as being out of control. Moreover, while the supervision of a service animal is generally not the responsibility of the covered entity, federal guidance notes that, in the school context, “the school or similar entity may need to provide some assistance to enable a particular student to handle his or her service animal.”

Here, the family may not demand that Woofy be allowed in the school as a service animal because (1) Woofy is not performing a specific task or work; and (2) even if Woofy were a service animal, his behavior was out of control and Woofy can therefore be excluded from school.

That all said, you should be aware that the family may claim that Woofy is an emotional support animal, and, as such, is an accommodation necessary under Section 504 or the IDEA for the daughter to attend school. In such cases, you can’t just indulge in your anti-dog bias. Rather, you and your staff must consider that request through the PPT or Section 504 process. However, in contrast to the requirements of the ADA that service animals be allowed in school in most circumstances, the PPT or Section 504 team may consider the request on its merits and determine whether permitting Woofy to accompany the girl in the school setting is necessary to provide her with a free appropriate public education under either the IDEA or Section 504.