A Moveable Beast: Service Animals In The Classroom

For millennia, animal ownership has been an activity whose participants find themselves awash in an ever-shifting stream of obligations. Because our common law develops hand in hand with our moral codes (or, at least, ostensibly should), then the legal rules that we enact regarding owning animals address not just the practical realities of what it means to have animals around us on a daily basis, but also the larger ethical and moral problems raised by our varied uses of them as well. From counties where "dog control" agencies hold pet owners accountable for a house dog's effect on the quality of neighborhood life, to state legislatures where governing bodies impose a bewildering variety of burdens on those who transport, breed, sell, consume, and market large groups of animals, fluctuating currents of rules and duties have immersed animal owners ever since animal domestication first began.

Nowhere is that interplay made more vivid than with animal ownership by the disabled. The tensions start with the observation that "equal opportunity" is an overarching principle which society values, and which holds that access to educational, employment and other important societal benefits should not be based on an individual's immutable traits, on stereotypes, or on irrelevant characteristics. Over historic time, devices such as canes and wheelchairs have come to be considered "part of a person", both socially and situationally, and thus in the common law are primarily deemed to be "irrelevant characteristics" which would not support a valid basis on which to deny a person equal access to services or goods.

Since "service animals" – i.e., seeing eye dogs, hearing ear dogs, and therapy animals – are functionally similar to those devices, the same reasoning has therefore normally been applied: a seeing eye should be an "irrelevant characteristics" and an invalid basis on which to deny a disabled person equal access to the trappings of normal society. Yet, canes and wheelchairs don't do the numerous odd things that animals all do, however, such as independently transport themselves from place to place, manifest intent, duplicate themselves, and generally act in the complicated and deliberate ways that living things act. Because seeing eye dogs (and the other types of service animals) add this extra layer of "independent conduct" messiness to the business of accessing social utilities, then their use triggers an extra-messy flow of moral and legal problems in the river.

Now add to that mix the problems inherent in providing services for those who are not merely disable but who are minors as well. The constitutionalist Ronald Dworkin once wrote that the distinction between legal and moral obligations "are not puzzles for the cupboard, to be taken down on rainy days for fun. They are sources of continuing embarrassment, and they nag at our attention." Shouldering the myriad obligations that accompany being at one and the same time a U.S. citizen, and a minor, and a disabled person, and an animal owner, is not some elitist pastime reserved for armchair academics – it is a daily challenge levied against millions in our country enmeshed in the starkest level of social interaction – needing equal access to services but also needing assistance from non-humans to competently enjoy that access and function.

In a sense, this "source of embarrassment" should really be no surprise – nothing really should rivet our personal emotions and our civic attention more sharply than the moral obligations embroiled in any child's struggle for help. Utilizing a dog or cat as a personal companion is just one more facet of that struggle, and in the conflict among those who need service animals, those who work with special education children, and those who encounter both the child and the animals, even the most carefully formulated rules employed to regulate such interactions often make neighbors bristle, parents implore, friends beseech, teachers compromise, politicians lie, and strangers opine on a grand scale.

Let's examine some of the ground rules. At the very base of these rules we start with the core idea that our national policy with respect to equal educational opportunity (20 U.S.C. Section 1221), declares that "recognizing that the Nation's economic, political, and social security require a well-educated citizenry, the Congress (1) reaffirms, as a matter of high priority, the Nation's goal of equal educational opportunity, and (2) declares it to be the policy of the United States of America that every citizen is entitled to an education to meet his or her full potential without financial barriers."

At the next level up, the "Individuals with Disabilities Education Act" (20 U.S.C. Section 1400), tells us that Congress has also declared that "Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities." At one and the same time, we want to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living, and to ensure that the rights of children with disabilities and parents of such children are protected, and to provide for the education of all children with disabilities – yet we also want to ensure that educators and parents have the necessary tools to improve educational results for all children in the classroom.

At the higher levels, we note that for those persons with defined disabilities, other federal laws – primarily, the American with Disabilities Act (ADA)[1] – requires that otherwise qualified persons with disabilities be given meaningful access to the same programs and services which others enjoy. In those circumstances where people have described provision of an animal to be a "reasonable accommodation" for certain impairments, our courts have had to engage in a balancing test, weighing the benefit of any assistance an animal might provide a disabled person against the hardship of any disruption the arrangement might impose on others in the same place, including on the public, patrons, colleagues, customers, and co-workers.

With those rules setting our stage, the gritty realities of bringing a service animal into an educational institution – and even more specifically into a classroom with children – come into play. Being fact-bound, claims that having a dog aids a life activity, or acts in the place of a tool, or helps ameliorate stress, or allows one to perform a certain task better, are all claims which must be supported by evidence that the dog has particular qualities be they mechanical or medically therapeutic. In other words, a vague endorsement of the dog's effectiveness as an overall source of good feelings is and should be insufficient, while a solid diagnosis that the dog actually solves specific problems that the student needs solved in order to do their work is and should be satisfactory.

While courts pay lip service to the value of canine companionship, they are often quite reluctant to ultimately give legal significance to the observation that "dogs make people feel better" since it permits no identifiable stopping point: the worry is that eventually every person with a condition that brought about feelings of depression or low self esteem would be entitled to the dog of their choice, without regard to training or educational utility, and, worse, that there would be no logical reason to eventually deny accommodation for those who wished to use cats, fish, reptiles or birds instead of dogs. Deeply underlying courts' anxiety over the lack of a bright dividing line is the odd (and quite modern) popular perception that animals overall tend to subtract from human productivity much more than they contribute.

The law has always considered dogs to be personal properties, and – no different than hats, hammers, or hamburgers – subject therefore to rules affecting trade goods. Dogs have been owned, bought, and sold as products; used as equipment or tools; "manufactured" (i.e., artificially bred); and even harvested as sources of food. Since normal products and trade goods are not animate, that is, do not independently move around and manifest intent, then the law on what any particular product or good might "feel" is nonexistent. In law, there is simply no historical basis to treat dogs any differently than canes or wheelchairs, yet both biologically and circumstantially they are entirely distinct. Dogs, very unlike trade goods, act out by showing strong preferences and dislikes, slight interests and disinterests, uncontrollable assertions and unalterable hesitancies, piercing attentions and vague distractions, persistent dispositions and temporary desires. Wheelchairs do nothing of the sort.

Because humans remain uncomfortable in a formal legal setting suggesting they share generalized mental experiences with any group other than themselves, unease makes judges and legislators resist applying the same rules to dog owners those rules that apply to wheelchair owners. The use of a dog as an educational tool is really a small piece to a much larger puzzle of what "use" is as to any living thing, and may reflect a host of dynamic and competing forces from both nature and nurture that all living things exhibit. Biology and ownership jointly contribute to how dogs interact with the world, and examining their application as tools in a legal setting is simply one more method by which society examines itself – appreciating not just fundamental distinctions between people and other animals, but fundamental similarities as well.

Two competing questions raised by bringing service animals into classrooms are: "Who's getting help with something that they really need help with?" and "Who's getting away with something they really shouldn't be getting away with?" In the public's eye, the main secret concern is "Are you really disabled?",and the suspicion is that the claimant is actually healthy. This is not really a problem with minors at present as a host of criteria are well in place to aid in that determination. The second secret concern, however, by the public, is "Does the animal really assist you?" with the suspicion being that it is simply the person's pet and no "tool" at all. The final secret concern is "Will the animal cause trouble?" with the suspicion being that it will wreck something or hurt someone, and the overall secret concern is of course "Am I required to treat you differently?" with the overall suspicion being that the student is demanding special treatment that he or she doesn't deserve.

In the eye of the disabled, the primary secret concern is something like "Are you trying to deny me access?" The suspicion is often that they are being targeted or stonewalled. Other secret concerns include accusations of fraud and failures to qualify for assistance resulting in concerns that to obtain the access needed they have not followed some rule correctly. For the disabled, the overall secret suspicion is that they deserve special treatment that they haven't correctly demanded.

ADA regulations do not create a blanket right of universal access for all service animals. An animal that simply provides comfort or reassurance is equivalent to a household pet and does not qualify as a "service animal" under the ADA. There must be some evidence of individual training to set service animal apart from ordinary pet. There are no requirements as to the amount or type of training that a "service animal" must undergo to qualify under ADA, nor the type of work or assistance that it must provide, but it must at least be trained to perform tasks or do work for the benefit of a disabled individual.

The core aspects of legal protection for students involve guiding children with impaired vision, alerting children with impaired hearing, and aiding children with impaired physical or mental functions, but they also involve, maintaining public safety and health, preserving competing legal rights, and preventing excessive or fundamental burdens on those around them. We tend to approve of animals which are individually trained to perform specific tasks where the task relates directly to the disability, and we tend to approve also of disabilities that are medically supported, require assistance of some type, and where reasonable accommodations can be made that are not unsafe or unhealthy, comprise a fundamental alteration of a school, or are an undue burden to use by others. We don't want to protect some children's rights where in doing so we are violative of other protected rights.

There has been both contraction and expansion of the federal laws. In restriction, as of March 15, 2011, only dogs are recognized as "service animals" under the ADA. In expansion, however, disability now includes "a physical, sensory, psychiatric, intellectual, or other mental disability". Many concessions have to be made: the modification of policies to allow quadriplegic children to attend school with a service animal which might be disruptive would likely be deemed a necessary and reasonable accommodation under ADA as long as the modification strikes a well-reasoned and carefully-crafted balance between the child's needs and the school's interests by generally allowing access for service animals, but providing that they could be excluded under certain circumstances.

Not every concession has to be made, however. The legal and moral compulsions to do right by others, to others, to pets, and to the students next door, collide with a sharp yelp at each instance. Because dogs can be excluded even under the ADA, parents who become alarmed at the prospect will bark. Because concessions by administrative staff do have t be accounted for, code sections with teeth can bite. A bracing bit of compromise, sensibly applied, can do more to get a service dog owner off the rhetorical sidewalk and into the judicial street than all the nasty phone calls in the world combined.

Service animals in classrooms are not trifling plays for the municipality to perform for the public's entertainment. Due to lax evidentiary and procedural rules, moral and legal obligations dig their claws into teacher, student and administrator alike without distinction. Stuffy courtroom walls are hardly sufficient to absorb the raw emotions extracted from such challenges, and every participant is immersed in the roiling skirmish between animal-lovers and animal-haters, the familiar and the estranged. The classroom is likely the best place for owners and educators to learn to themselves sit, stay, roll over, beg, or occasionally bare their teeth. Somewhere between the whining and whaling, the exchanges at this level exact the most careful listening a citizen may ever have to engage in, noticing, perhaps for the first time, the curious interplay between a legal right regarding an animal, and a moral right regarding another's property, livelihood, or psyche. Definitely not "puzzles for the cupboard," classrooms with animals in them are at one and the same time the most public and the most personal conversations we have with each other about civic duties we owe, legal and moral, to all animals, non-human and human alike.

[1] "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. Discrimination includes: a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations"