II. Federal Laws: Service Animal versus Assistance Animal
Huss, Rebecca J., Missouri Law Review
The issue of allowing animals to assist persons with disabilities on campus has been challenging for postsecondary institutions. (16) Although "traditional" service animals such as guide dogs have been accommodated on campuses, the use of animals to assist individuals with psychiatric issues is a more recent trend, and federal agencies have provided limited guidance. (17) This section of the Article will discuss the federal laws most likely to be applicable to a student wishing to bring a service animal or assistance animal onto campus.
A. Americans with Disabilities Act and Section 504 of the Rehabilitation Act
The federal Americans with Disabilities Act (ADA) is a comprehensive civil rights law that prohibits discrimination on the basis of disability. (18) Among other issues, the ADA provides that individuals with disabilities must be granted access to public entities (state institutions) under Title II and places of public accommodation (private institutions) under Title III. (19)
Section 504 of the Rehabilitation Act provides "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, ... be denied the benefits of ... any program or activity receiving Federal financial assistance." (20) Although section 504 applies only to institutions receiving federal financial assistance, the reality is that most postsecondary institutions fit within this category. (21) Only if a private postsecondary institution received no government funds would it be excluded from the provisions of section 504 (although it would be covered by the ADA).
The U.S. Department of Justice (DOJ) and the U.S. Department of Education "share responsibility for regulation and enforcement of the ADA in postsecondary educational settings." (22) The U.S. Department of Education's Office of Civil Rights (OCR) is the governmental agency that deals with complaints relating to a college's or university's violation of the ADA or section 504. (23) Frequently, cases refer to both the ADA and section 504 when alleging discrimination, and the cases generally do not distinguish the claims. (24) Both laws provide that an otherwise qualified individual with a disability (25) should not be excluded from participation in programs at a postsecondary institution. (26) Institutions are required to make reasonable modifications to policies, practices, or procedures so long as they would not fundamentally alter the nature of the program. (27) As an example, a college cannot prohibit the use of a service animal if doing so would have the effect of limiting a disabled student's participation in the program. (28) Accommodations are not required if they would cause an "undue financial or administrative burdens" (29) or cannot be made "without much difficulty or expense." (30) Schools may require students to provide documentation supporting the student's claim that he or she is disabled and needs an accommodation. (31)
1. DOJ Regulations Relating to Service Animals
Recent changes to the regulations governing the ADA include a definition of service animal consistent with previous DOJ guidance on the issue. (32) The current definition of service animal is: "any dog that is 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." (33) The regulations also require entities to make reasonable accommodations to permit the use of a miniature horse as a service animal, but the entity may consider several assessment factors prior to allowing the miniature horse into a specific facility. (34)
The DOJ regulations recognize that it is the responsibility of the person with a disability to control his or her service animal, and the public entity or public accommodation is not responsible for the care or supervision of an animal. (35) Furthermore, a service animal may be excluded from the premises if "(1) [t]he animal is out of control and the animal's handler does not take effective action to control it; or (2) [t]he animal is not housebroken. …