35 Pages Posted: 7 Aug 2008 Last revised: 31 Dec 2009
The U.S. Department of Education's Office for Civil Rights ("OCR") recently received complaints alleging that the service animal policies of over fifty postsecondary institutions discriminate against individuals with disabilities. In response, OCR issued internal policy on the use of animals by individuals with disabilities in the postsecondary setting. The policy imports the service animal standards of Title III of the Americans with Disabilities Act ("Title III"), which applies to public accommodations, into Section 504 of the Rehabilitation Act of 1973 ("Section 504") and Title II of the Americans with Disabilities Act ("Title II"), which cover colleges and universities and which are silent as to the use of animals by individuals with disabilities. In 2008, the Department of Justice ("DOJ") issued proposed amendments to Title II, which seek to explicitly graft the Title III service animal standards onto Title II.
This article argues that the OCR guidance and the DOJ proposed amendments impermissibly limit the universe of animals that may be used on campus by individuals with disabilities to "service animals," where the term may be appropriate for public accommodations but not the practical realities of the postsecondary context, and where non-service animals can provide benefits to individuals with disabilities, particularly those with mental impairments.
The article also proposes an alternative approach that draws specifically on Title II and Section 504, and would require postsecondary institutions to permit the use of service animals and any animal that ameliorates the effects of an individual's disability. It focuses on whether an individual with a disability can making this showing, whereas OCR and DOJ would categorically exclude non-service animals from that evidentiary process altogether, irrespective of the potential benefits of a non-service animal.
This article attempts to correct the legal missteps taken by OCR, DOJ, and those postsecondary institutions that are following their lead. It hopes, more generally, to enrich this important and emerging area of civil rights and education law.
Keywords: education, disability, colleges, universities, Title II, Section 504, animals
Suggested Citation: Suggested Citation
Sidhu, Dawinder S., Cujo Goes to College: On the Use of Animals by Individuals with Disabilities in Postsecondary Institutions. 38 University of Baltimore Law Review 267. Available at SSRN: https://ssrn.com/abstract=1209922