Although it is Xavier Academy’s policy that students are generally prohibited from having animals on campus, students with a disability may be entitled to a service animal as a reasonable accommodation. Qualification for such accommodation, the service animal, must be necessary to afford the student an equal opportunity to use and enjoy a program. Further, there must be a relationship, or nexus, between the student’s disability and the service the animal provides.
Xavier Academy recognizes the importance of service animals as defined by the Americans with Disabilities Act Amendments Act (ADAAA) and follows federal regulations regarding service animals.
What is a service animal?
The Americans with Disabilities Act (ADA) defines a service animal as a dog 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.[1] The type of work that a service animal performs must be directly related to the person’s disability.[2] In Texas, state laws define an assistance animal or service animal as a canine specially trained or equipped to help a person with a disability and a person uses the service animal with a disability.[3]
What access must be provided to an individual with a service animal?
Under the ADA, an individual with a service animal must be allowed to access all areas of a school’s facilities where members of the public or participants in services, programs, or activities are allowed to go.[4] State law goes further, providing that no person with a disability may be denied admittance to any facility because of the person’s disability or be denied the use of an assistance animal.[5] Service animals must be allowed on school vehicles and other facilities. Strictly speaking, only a trained dog meets the definition of a service animal under the ADA.
Under what circumstances could Xavier Academy deny access to a service animal?
Xavier Academy may ask an individual to remove a service animal from Xavier Academy property in two circumstances: (1) if the animal is out of control and the animal’s handler does not take effective action to control it; or (2) if the animal is not housebroken.[6] The ADA does not require the school to accommodate an individual when they pose a direct threat to the health or safety of others.[7] The determination that an animal poses a threat should be made based on an individualized assessment relying on “current medical knowledge” or the “best available objective evidence.”[8] A service animal should not be excluded based on assumptions about the animal’s size or breed but on observable evidence and verifiable medical concerns (such as a dog that appears foam at the mouth, appearing rabid). The care and grooming of the service dog should be determined, especially in the case of small children.
[1] 28 C.F.R. (Code of Federal Regulations) § 35.104, .136(i).
[2] 28 C.F.R. § 35.104.
[3] Tex. Hum. Res. Code (Texas Human Resource Code) § 121.002(1).
[4] 28 C.F.R. § 35.136(b).
[5] Tex. Hum. Res. Code § 121.003(c), (e), (i).
[6] 28 C.F.R. § 35.136(b).
[7] 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).
[8] 28 C.F.R. § 36.208(c); see also Pena v. Bexar County, 726 F. Supp. 2d 675, (discussing application of Title III regulations to a public entity’s duty to accommodate individuals with service animals under Title II.)
individual when they pose a direct threat to the health or safety of others.[7] The determination that an animal poses a threat should be made based on an individualized assessment relying on “current medical knowledge” or the “best available objective evidence.”[8] A service animal should not be excluded based on assumptions about the animal’s size or breed but on observable evidence and verifiable medical concerns (such as a dog that appears foam at the mouth, appearing rabid). The care and grooming of the service dog should be determined, especially in the case of small children.
How should service animals be treated?
Harassment, assault, interfering with, or harming animals is strictly prohibited.[1] When a service animal will be present in a classroom setting, particularly among younger students, educators may need to emphasize 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 in caring for the service animal?
It is not the Xavier Academy’s responsibility to supervise a service animal or to provide for its care or feeding.[2] 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(s).[3] If the handler is unable to use a harness, leash, or other tether(s) due to a disability or the use of these items would interfere with the service animal’s work, the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).[4]
Xavier Academy will not charge a person with a service animal a fee to access the school facilities. However, Xavier Academy may charge the individual for damages caused by the service animal.[5] All schools 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.
What if a student is not capable of handling a service animal? Is Xavier Academy obligated to provide a staff member to assist the student with the animal?
In most situations, no. The parents must provide a handler if a student cannot handle a service animal. If a handler is not provided, the service animal can be prohibited from coming to school.[6] An exception may apply if Xavier Academy determines that the animal is necessary for a student with a disability to assign a staff member to assist a student with a service dog if agreed upon as a reasonable accommodation under Section 504 rather than as “care and supervision,” which the ADA specifically states that schools are not required to provide.[7]
What about “emotional support animals and “therapy animals”?
Service dogs are similar but different emotional support animals (ESA) and therapy animals. Service dogs are specifically trained for a person’s disability and perform vital tasks that cannot be executed by the person they serve. Service dogs are not pets. Instead, they are a medical tool to help their owners overcome the hardships of the disability.
The ADA specifically states that a service animal does not include 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.”[8]
What if other people are allergic to the service animal?
Allergies or fear of animals is generally not valid reasons to deny a service animal.[9] 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.[10] Xavier Academy will attempt to find a solution that does not penalize either the person with the service animal or the person with fears or allergies.
[1] Tex. Hum. Res. Code § 121.002, .003(j).
[2] 28 C.F.R. § 35.136(e).
[3] 28 C.F.R. § 35.136(d); Tex. Hum. Res. Code § 121.005.
[4] 28 C.F.R. § 35.136(d).
[5] 28 C.F.R. § 35.136(h).
[6] 28 C.F.R. § 35.136(d).
[7] Alboniga ex rel. A.M. v. Sch. Bd. of Broward County., Florida, 87 F. Supp. 3d 1319 (S.D. Fla. 2015).
[8] 28 C.F.R. § 35.104.
[9] See Doe v. U.S. Sec’y of Transp., 17-CV-7868 (CS), 2018 WL 6411277 (S.D.N.Y. Dec. 4, 2018) (finding no duty to provide a dog-free school for student with allergies).
[10] See U.S. Department of Justice, Civil Rights Division, 2010 ADA Guidance: https://www.ada.gov/resources/service-animals-2010-requirements/
