Maryland Bar Bulletin
Publications : Bar Bulletin : November 2008

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Under federal law, pigs can fly. For example, in compliance with a federal statute governing air travel, a major airline permitted an assistance animal – in this case a 300-pound Vietnamese pot-bellied pig named Charlotte – to accompany an individual with a disability on a flight across the country.

Whether Charlotte and other assistance animals may join disabled users in other settings remains less clear. Indeed, the extent to which federal civil rights pronouncements enable an individual with a disability to use an animal in the context of postsecondary institutions is a largely open area of law. Title III of the Americans with Disabilities Act (“Title III”) contains provisions specifically addressing the use of animals by individuals with disabilities. Title III, however, applies to an extremely limited number of purely private schools that do not receive any federal funding.

Virtually all postsecondary institutions are subject to Section 504 of the Rehabilitation Act of 1973 (“Section 504”), which applies to recipients of federal financial assistance, and Title II of the Americans with Disabilities Act (“Title II”), which applies to public entities. These federal laws, in contrast to Title III, are essentially silent on the question of whether and, if so, under what circumstances an individual with a disability may use an animal in colleges and universities.

In June 2008, however, the Department of Justice (DOJ) entered this relatively barren legal landscape by proposing to amend the Title II regulations. Because Title II was enacted to extend the substantive provisions of Section 504 to public entities and is read to be materially consistent with Section 504, the proposed regulations would provide much-needed clarity to public postsecondary institutions as well as those that receive federal funds. This article describes some of the features of the proposed regulations, focusing on certain threshold issues – which animals are covered by the regulations and how an individual with a disability may be permitted initially to use an animal on campus.

The proposed regulations would provide that entities subject to Title II are legally obligated to only protect “service animals” as defined by Title III: “Title II entities have the same legal obligations as Title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary to avoid discrimination[.]”

The proposed amendments would revise the definition of a “service animal” under Title II to mean:
any dog or other common domestic animal individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including, but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing minimal protection or rescue work, pulling a wheelchair, fetching items, assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation.

More specifically, whereas the existing definition of a “service animal” may be of any breed or species, the modified definition limits the scope of cognizable service animals to “common domestic” animals. Animals eliminated from the ambit of service animals and whose use therefore may be denied by postsecondary institutions include “wild” or “exotic” animals such as reptiles, rabbits, horses, ponies, goats, ferrets, amphibians, rodents, and pigs like our friend, Charlotte.

The proposed definition also would affirm the Title III view that a “service animal” must be individually trained to affirmatively ameliorate the effects of an individual with a disability’s disability. Accordingly, animals whose sole function is to provide emotional support or comfort by their presence alone are not considered service animals. That said, an animal that affirmatively works or performs tasks for the benefit of an individual with a psychiatric, cognitive, or mental disability may be a “service animal.” The proposed regulations decline the invitation of certain advocacy groups to specify the type of individual training that may be sufficient for Title II purposes.

With respect to the initial interaction between the individual with a disability and the postsecondary institution, under the proposed regulations the institution would be prohibited from asking about the nature or extent of an individual’s disability, but would be permitted to ask if the animal is required because of a disability and what affirmative functions the animal has been trained to perform. The institution’s inquiries appear to be limited to verbal questioning, as the institution cannot require documentation regarding the service animal as a condition to its use on campus.

The proposed regulations are, as of this writing, in the public comment phase of the rulemaking process. Their merits aside, the regulations would provide significant guidance to almost all postsecondary institutions in the nation.

Dawinder S. Sidhu is a research fellow at Johns Hopkins University. He served in the Department of Education’s Office for Civil Rights, where he worked on agency policy on the use of service animals in the postsecondary context.

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Publications : Bar Bulletin: November 2008

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