A new debate in special education has been slowly brewing over the last several years around the country: Do service dogs have to be allowed in a public school? Title II of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in public schools. Under the ADA, public schools must generally modify policies, practices, or procedures to permit the use of a service dog by a student with a disability at school and school-related activities.
However, service dogs are required to be under the control of a handler. Students often act as the handler of their own service dog, but currently, the debate is focused on whether an additional handler is required in certain situations. Can a school require (1) parents to attend school as the dog’s handler themselves or (2) pay someone to be the dog’s handler? Or, should the school be required to provide a handler for a student to use his or her service dog?
When most people think of a service animal, they think of a seeing-eye dog. However, the ADA defines “service animal” as any dog, or miniature horse, individually trained to work or perform tasks that benefit an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disabilities. The work or tasks performed may differ, but must relate directly to the disability.
Because of their enormous benefits, there is a growing trend for students with disabilities such as autism or seizure disorders to utilize service dogs to assist them. Although several cases dealing with service dogs in public schools have popped up across the country, most are settled out of court and, thus, do not result in a court ruling. While this is great for the students involved, their families, and their service animals, it leaves other parents and school districts with little guidance as to the legal ramifications.
Closer to home, John McDonald, a six-year-old who attends Middleton Elementary School in Sherwood, Oregon, is currently trying to bring his service dog to school with him. John’s autism service dog, Kai, is specifically trained to help with John’s disability. John is nonverbal and has a tendency to run when he has high anxiety. Because their son has no sense of danger, John’s parents worry he will slip away from his aid at school and run outside, possibly into traffic. To help with this problem, Kai is tethered to John with a harness and physically keeps him from running. Kai also calms John when his anxiety rises so that he does not want to run in the first place.
Sherwood School District has refused to allow John’s one-on-one instructional aide to assist with Kai in class. This assistance would entail issuing occasional commands and tethering and untethering him for activities such as P.E. Instead, the District maintains the family must supply a separate handler for the dog. It would be a tremendous financial burden for the family to provide a handler either by paying someone or leaving a job to attend school with John. More importantly, the ADA prohibits the District from requiring the McDonalds to provide a handler for Kai.
On December 15, 2014, Wiscarson Law filed a civil rights complaint with the U.S. Department of Justice in an effort to require the school district to allow John to have Kai in school, without the McDonalds providing a handler. Currently, the complaint is awaiting review by the Civil Rights Office in Washington, D.C. The Civil Rights Office will determine if the complaint warrants an investigation. If the District is found by the Civil Rights Office to have discriminated against John, the United States could file a lawsuit against Sherwood School District.
Since filing the complaint, in a similar case, a federal district court in Florida has ruled school districts are prohibited by the ADA from requiring parents provide a handler for their children’s service animal. In light of this decision, the McDonalds attempted to bring Kai to school with John. They wrote the superintendent beforehand, sharing the recent Florida decision and they informed the district Kai would be joining John at school on March 11th, 2015. Several media outlets were present for the attempt, but Kai was turned away from the school at the door.
Now the McDonalds wait. As they wait for a decision from the Department of Justice, John and Kai’s bond is weakening by the day. John’s mom says she can see a difference, and Kai is starting to think he is her service dog, not John’s. This is detrimental to John and Kai’s relationship now, and John’s ability to use a service dog for the rest of his life.
After spring break, a member of the community volunteered to be Kai’s handler for the remainder of the school year. While this is good news for the McDonalds, it is not a permanent solution and does nothing for other families in the same situation. So, while we wait anxiously for this to be resolved, at least John and Kai will be able to forge their bond and John will remain safe at school.