1. Supreme Court Decisions from 1999 


The Supreme Court issued three decisions on the ADA in 1999. Sutton v. United Air Lines, Inc., __ U.S. __, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999), Murphy v. UPS, __ U.S. __, 119 S. Ct. 2133, 144 L. Ed. 2d 484 (1999), and Albertsons, Inc. v. Kirkingburg, __ U.S. __, 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999). Although each decision applied the ADA to employment, the decisions nonetheless provide guidance on student demands for accommodations.

Sutton v. United Air Lines, Inc., and Murphy v. UPS addressed the definition of "disability" in 42 U.S.C. sec. 12102(2). This definition applies to the ADA as a whole, not just to employment cases. The primary definition of disability is "A physical or mental impairment that substantially limits one or more of [a person's] major life activities." Sutton held that "the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses." 119 S. Ct. at 2143. The Court reasoned that if an impairment was sufficiently mitigated, the impairment might not substantially limit a major life activity. Albertsons added an intriguing supplement to the holdings of Sutton and Murphy. The Court, noting that the monocular plaintiff had developed subconscious mechanisms for coping with his impairment, said that "We see no principled basis for distinguishing between measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems." 119 S. Ct. at 2169.

Clearly, when assessing whether a student has a disability, an institution must consider the student with reference to whatever mitigating factors exist. Eyeglasses or other prosthetic devices, medication and therapy, and the student's ability to compensate for the disability, may all be considered in deciding whether the student's existing condition substantially limits a major life activity, and is thus a "disability." A good example of such an analysis is McGuinness v. University of New Mexico School of Medicine, 170 F.3d 974 (10th Cir. 1998), which held that although a medical student had an anxiety disorder that affected his ability to take tests, he was not disabled because he was able to mitigate his anxiety by adjusting his study regimen.

28 C.F.R. sec. 35.104 and 34 C.F.R. sec. 104.3 both define "major life activities" as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Sutton declared that "To be substantially limited in the major life activity of working . . . one must be precluded from more than one type of job, a specialized job, or a particular job of choice. If jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." 119 S. Ct. at 2151.

If a student claims a substantial limitation in the major life activity of "learning," Sutton implies that the student must show that the impairment precludes him or her from attending more than just one type of class or a particular class of choice. If a student claims that his impairment prevents him from learning music, for example, but not other subject areas, there arguably is not a "substantial limitation" on the major life activity of learning. The result may not be the same if music were required for graduation in many major subjects. (Even so, such a challenge to a core requirement might not prevail if it would require a fundamental alteration of the institution's standards. Guckenberger v. Boston University, 8 F. Supp. 2d 82 (D Mass 1998).)

The Court also hinted that "working" might not validly be listed as a major life activity. "We note, however, that there may be some major conceptual difficulty in defining "major life activities" to include work, for it seems 'to argue in a circle to say that if one is excluded, for instance, by reason of [an impairment, from working with others] . . . then that exclusion constitutes an impairment, when the question you're asking is whether the exclusion itself is by reason of handicap.' . . . Indeed, even the EEOC has expressed reluctance to define 'major life activities' to include working and has suggested that working be viewed as a residual life activity, considered only as a last resort, only '[i]f an individual is not substantially limited with respect to any other major life activity.' 29 C.F.R. pt. 630, App. § 1630.2(j) . . . ." 119 S. Ct. at 2151. In some cases, students claim that they are disabled because their condition substantially affects the major life activity of "learning." It could be argued that "learning" is as much a bootstrap as "working" appears to be.

Albertsons, Inc. v. Kirkingburg, and Murphy to some extent, addressed the effect of a federal standard that set physical requirements for a job. The Court held that if a person cannot meet a federal standard for a job, the person was not "otherwise qualified" to perform that job with or without reasonable accommodations. Albertsons, 119 S. Ct. at 2172-73. The Court's reasoning regarding federal safety or health rules should apply in a student context as well &endash; particularly in the health care field or in research situations.


2. Multiple Chemical Sensitivity


Multiple Chemical Sensitivity (MCS) is a syndrome in which multiple symptoms reportedly occur with low-level exposure to any of several environmental chemicals. Common symptoms include fatigue, difficulty concentrating, depressed mood, memory loss, weakness, dizziness, headaches, heat intolerance, and arthralgias. Besides physical problems, patients with MCS often suffer from depression, anxiety, and somatoform disorders.

A widely used definition of MCS is: (1) the syndrome is acquired after a documentable environmental exposure that may have caused objective evidence of health effects; (2) the symptoms are referable to multiple organ systems and vary predictably in response to environmental stimuli; (3) the symptoms occur in relation to measurable levels of chemicals, but the levels are below those known to harm health; and (4) no objective evidence of organ damage can be found. (Cullen MR. The worker with multiple chemical sensitivities: an overview. Occup Med 1987; 2:655-61.) Note that this definition does not specify individual symptoms or mechanisms of disease.

No one knows what causes MCS, or indeed whether the syndrome is physical, mental, or a combination of the two. See two articles by Ronald E. Gots, M.D., Ph.D., Multiple chemical sensitivities--public policy [Editorial]. J Toxicol Clin Toxicol 1995; 33:111-3, and Multiple Chemical sensitivities: What is it? North Bethesda, MD: Risk Communication International, Inc., March 31, 1993. Several theories have been advanced to explain the cause of MCS, including allergy, toxic effects, and neurobiologic sensitization. There is insufficient scientific evidence to confirm a relationship between any of these possible causes and symptoms. The American College of Occupational and Environmental Medicine recently summarized the state of the research on MCS:

Since the publication of earlier position statements by the American College of Occupational and Environmental Medicine (ACOEM), the diagnosis, treatment, and etiologic assessment of multiple chemical sensitivities (MCS) has remained a troublesome medical and social concern for individuals, physicians, government, and organizations. First described in 1952, the syndrome has since engendered over 20 names, including "environmental illness," "total allergy syndrome," "20th century disease," and "chemical AIDS." These terms refer to complaints of patients who report recurrent non-specific symptoms referable to multiple organ systems that the sufferers believe are provoked by exposure to low-levels of chemical, biological, or physical agents. No consistent physical findings or laboratory abnormalities have yet been found to differentiate MCS patients from the remainder of the population.

Although by convention the scientific community has used the term MCS, this designation incorrectly implies that the condition affects the immune system and that chemical exposure is its sine qua non. In fact, immunologic dysfunction in these patients has not been identified and the role of the environment in precipitating complaints continues to be controversial. The pathophysiologic and psychologic mechanisms that may contribute to the development and maintenance of this disorder have still not been definitively elucidated. ACOEM concurs with many prominent medical organizations that evidence does not yet exist to define MCS as a distinct entity.

The full report is at http://www.acoem.org/paprguid/papers/mcs.htm#statement.

The absence of scientific agreement on MCS tends to contribute to emotionally charged positions. At http://www.quackwatch.com/01QuackeryRelatedTopics/mcs.html, a physician offers a skeptical overview of MCS, with good comments on some scientifically questionable diagnostic procedures for MCS. An article supporting the reality of MCS can be found at http://www.california.com/~hawk/MCS-Ammunition.htm. For an example of the potential for disagreement, a Seattle Times editorial described the reaction of MCS proponents against research by University of Washington scientists.

Given the scientific problems, it should come as no surprise that evidence regarding MCS has successfully been challenged under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). See Coffey v. County of Hennepin, 23 F. Supp. 2d 1081 (D Minn 1998) and Bradley v. Brown, 852 F.Supp. 690 (D NInd) affirmed 42 F.3d 434 (7th Cir. 1994). In Frank v. New York, 972 F. Supp 130, 136-37 (D NNY 1997) the court ruled that expert testimony concerning the cause of plaintiffs' multiple chemical sensitivity was too speculative to constitute "scientific knowledge" because the theory underlying MCS "is untested, speculative, and far from generally accepted in the medical or toxicological community." To the extent that the MCS theory had been tested, "such tests have failed to provide objective support for the notion that the symptoms complained of by MCS sufferers are caused by environmental pollutants." A news report on Frank is at http://www.junkscience.com/news/mcs.html. For a contrasting opinion, the federal district court for Utah recently ruled that a person who was sensitive to strong scents could prove a disability without relying on medical evidence. Davis v. Utah State Tax Commission, D. Utah No. 2:98CV224K, 8 May 2000.

Despite the scientific difficulties, there is a growing agreement that MCS should not be dismissed, but should be studied using acceptable scientific protocols. Following experiences with military exposure to chemicals in the Gulf War, several physicians proposed a protocol to test for and diagnose MCS. Archives of Environmental Health, Vol. 54, No. 3, pp. 147&endash;149; http://www.ncchem.com/mcsconsensus.htm. The Interagency Workgroup on Multiple Chemical Sensitivity, which comprised several members of federal science and health agencies, issued an objective report on MCS, which says at http://web.health.gov/environment/mcs/IX.htm:

It is appropriate for public health leadership to work to mitigate illness in persons with disorders that are not yet fully explainable. In so doing, it must be recognized that chemical agents found to be noxious by a significant portion of the population may, and often do, present public health hazards that lead to health concerns such as MCS. . . . It is currently unknown whether MCS is a distinct disease entity and what role, if any, the biochemical mechanisms of specific chemicals have in the onset of this condition. The workgroup finds that MCS is currently a symptom-based diagnosis without supportive laboratory tests or agreed-upon clinical manifestations. This dependence on symptom-based diagnosis has resulted in the absence of a uniformly agreed-upon case definition. . . . However, scientific knowledge changes over time as additional findings are reported; it is therefore important not to lose sight of lessons from the past in which suspected health effects of environmental exposures were verified at a later date through scientific research.

Similarly, the medical profession recognizes that regardless of the etiology of MCS, its impact on patients is real and should be addressed. The American Academy of Family Physicians (AAFP), for example, said at http://www.aafp.org/afp/980901ap/magill.html that "Physicians should compassionately evaluate and care for patients who have this distressing condition, while avoiding the use of unproven, expensive or potentially harmful tests and treatments."

The difficulty in establishing a diagnosis of MCS will not necessarily mean that a student with MCS will never be entitled to accommodations. The student could still show that he or she is disabled through other scientifically sound diagnoses that are not dependent on MCS. See Coffey v. County of Hennepin, 23 F. Supp. 2d at 1087. Nonetheless, it can be difficult to decide how to accommodate a disability caused by exposure to chemicals. The AAFP's comments on MCS, at the web site mentioned in the previous paragraph, are balanced, well researched, and documented, and provide helpful background from an ADA accommodation perspective.

MCS cases (indeed, any case in which a person reacts to a common substance or chemical) can also cause practical difficulties. If a person cannot tolerate perfume or is sensitive to latex, it can be almost impossible to create an environment free from all scent or latex products. An institution also must be aware that it cannot always control accommodations, because it may depend on cooperation by other students or persons not in the institution's control. For example, recently a student in a public school was suspended because he purposely wore heavy cologne to a class whose teacher had severe allergies. An article on the incident is at http://www.seattlep-i.com/local/brfs2211.shtml.

For further information, OSHA has a site regarding MCS. Links to resources for persons suffering from MCS are at http://www.snowcrest.net/lassen/mcsei.html, and http://www.mcsurvivors.com/.


3. Duty to Accommodate in Third Party Settings


In their efforts to provide boundless opportunities for their students, institutions often arrange with third parties to provide services to the students. An institution might hire a third party to provide or deliver course content (such as a web-based distance learning course). Other institutions require their students to complete an internship at an external organization. The question of what duties an institution may have in these third party settings is not well resolved, but the application of recognized principles of the ADA may help suggest answers.

The first principle is to determine if the institution retains control over the third party setting. If an institution uses the third party as an arm of the institution, the institution likely will be fully liable for any ADA problems caused by the third party. By contrast, as in the case of an open externship requirement, if the institution does not select the third party to provide the needed services the institution may not have an obligation to accommodate &endash; even if the services are required for a course or for graduation.

A second, related principle is whether the institution contracts with the third party. Two relevant federal rules, 28 C.F.R. sec 35.130(b) and 34 C.F.R. sec. 104.4, provide that a public entity cannot by contract or other arrangement deprive a qualified individual with a disability an opportunity to participate in or benefit from the institution's services. (The relevant portions of 28 C.F.R. sec 35.130(b) are at the end of this outline. Interestingly, 42 U.S.C. sec. 12182(b), which prohibits discrimination by public accommodations, refers to discrimination through contract, but 42 U.S.C. sec. 12132, which prohibits discrimination by public entities, does not mention contracts.)

Some third parties may have an independent obligation to accommodate, as an employer of the student (perhaps in an externship) or as a place of public accommodation. This may not absolve the institution from its obligations under the ADA, but it can provide a hook to encourage the third party to work with the student. And of course in a contract, the institution should require the third party to take appropriate steps to accommodate disabled students. Again, the contract could not absolve the institution from liability to a student, but it should lessen the likelihood of problems, and it will give the institution a contractual remedy if problems do arise.


4. Duty to Accommodate in Study Abroad Settings


Congress has the power to enforce its laws beyond the territorial boundaries of the United States. E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 248, 111 S. Ct. 1227, 1230, 113 L. Ed. 2d 274 (1991); Smith v. U.S., 507 U.S. 197, 204, 113 S. Ct. 1178, 1183, 122 L. Ed. 2d 548 (1993). However, a federal law is presumed to operate only within the U.S. unless the law clearly says otherwise. Thus, the question whether the ADA applies outside the U.S. is a matter of statutory construction. Id. The ADA does not include language that suggests that Congress intended for it to have extraterritorial application.

Nonetheless, it can be argued that if at least some part of the contract with a student occurs in the U.S., the application of the ADA would not be "extraterritorial." This argument is before the 11th Circuit in a case filed by Tammy Stevens against Premier Cruises, Inc., a Canadian company offering cruises in the Bahamas. Ms. Stevens, who has been joined by the Department of Justice as amicus, argued that Premier should comply with the ADA because it advertises in the United States, and picks up almost 95% of its passengers in the United States. The Department of Justice's brief argues that it is not seeking extraterritorial enforcement of the ADA, but instead is claiming that Ms. Stevens was discriminated against in the United State when she booked the cruise and boarded the ship in Miami. If this argument prevails, an institution could have a duty to make at least some aspects of its overseas programs accessible to the disabled. See Disability Compliance Bulletin vol. 15, issue 8 p. 9.

If the 11th Circuit rules in Ms. Stevens's favor, it likely will open a host of questions regarding the extent to which an institution will need to accommodate its students in overseas settings. For example, will the institution need to provide accommodations such as interpreters for courses, testing accommodations, or changes to the foreign location's physical structure? Would the answers be the same if the course is offered by a foreign entity, with the US institution acting as a conduit?


5. Assessing Claims for ADD/ADHD and Psychological Disabilities


ADD and ADHD stand for Attention Deficit Disorder and Attention Deficit-Hyperactivity Disorder. (I will refer to these related disorders as "ADD.") In contrast to MCS, there is objective scientific evidence for ADD, although its cause is not yet known. Brain modeling and imaging studies show differences in the brains of persons with ADD. Most scientists suspect the cause of ADD is genetic or biological. Some believe ADD may be caused by an imbalance of neurotransmitters (chemicals used by the brain to control behavior) or by abnormal glucose metabolism in the central nervous system.

ADD nonetheless remains a concern for institutions because professionals have not yet found a means of measuring it, and because the range of ADD's effects can vary widely. The presence of the disability is determined inferentially and its diagnosis is very dependent on the abilities of the evaluator. As a result, it can be difficult to assess whether an individual is disabled, or determine the appropriate accommodations for the disability. Also, many biological and psychological problems can contribute to symptoms similar to those exhibited by persons with ADD. A comprehensive assessment of a person suspected of having ADD should include an evaluation of medical, psychological, educational and behavioral functioning.

The timing of the evaluation also can be important. The extent to which ADD affects a person can change over time, and the effects typically lessen as a person ages. As a result, an evaluation that is more than three years old may not accurately describe a student's current condition. Institutions should encourage students to provide evaluations that are reasonably up-to-date, but should retain some flexibility because evaluations can be very expensive (OCR also does not approve of policies with a too-rigid cutoff for older evaluations).

ADD is not a learning disability. Rather, students with ADD have difficulty focusing their attention, which reduces the amount of work they can accomplish. A student may have problems with organizing, prioritizing, completing tasks on time, doing lengthy or complex assignments, interacting appropriately with faculty and other students, or following rules. Students with ADD perform best when they have an organized structure with consistent rules so that they can clearly understand what they are doing and what they should do next.

In general, accommodations should provide the student with structure and reduced distractions, help with organizing and prioritizing, clear expectations regarding assignments and performance, and specific and repeated instructions. A web site at http://www.add.org/content/legal/college.htm offers a list of other possible accommodations (for registration and testing as well as academic courses) that may be a useful starting point.

Following Sutton and Murphy, it can be argued that a student with ADD is not "substantially limited" in a major life activity merely because he or she cannot learn quite as easily as others. For example, in Gonzalez v. National Board of Medical Examiners, 60 F. Supp. 2d 703 (E.D. Mich. 1999), a post Sutton and Murphy decision, the court denied relief under the ADA to a medical student who had demonstrated non-ADD/ADHD learning difficulties because the student had not shown that his learning disability substantially limited a major life activity in comparison to the average person in the general population. An earlier decision, Price v. National Board of Medical Examiners, 966 F. Supp. 419 (SD W Va 1997), similarly held that students with ADHD did not have a disability for purposes of the ADA because they were able to learn as well as or better than the average person in the general population. See also Bercovitch v. Baldwin School, Inc., 133 F. 3d 141 (1st Cir. 1998), DeMar v. Dar Freshner Corp., 49 F. Supp. 2d 84 (ND NY 1999), and Paul v. Wis. Dept. of Workforce Development, 191 F.3d 456 (7th Cir. 1999) (unpublished) (reported in Disability Compliance Bulletin vol. 16 issue 2 p. 5.), which held that the plaintiffs were not disabled by ADD because they had not proved that they could not perform a wide range of jobs.

ADD issues can arise not only in classroom settings, but also in admissions and discipline. Applicants for admission occasionally seek accommodations in admissions standards, often on the theory that their disability was insufficiently accommodated in their previous educational setting. The Courts generally are loath to question an institution's admissions standards, and check instead to ascertain that the institution treated the disabled applicant as it would any other applicant. Betts v. Rector & Visitors of the University of Virginia, 967 F. Supp. 882 (WD Va 1997). For example, if an institution overlooks an applicant's substandard grade average because the grades improved in the applicant's junior and senior years, the institution would be required to do the same for a disabled applicant. Gent v. Radford University, 976 F. Supp. 391 (WD Va 1997).

Still, an applicant might attempt to argue that an admission standard is subject to change if it does not "fundamentally alter" the nature of the University's program. 28 C.F.R. 35.130(b)(7). Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432 (6th Cir. 1998), affirmed a grant of summary judgment against a student with ADHD who had received numerous accommodations but who was dismissed from the program on the basis of academic failure. Citing the Supreme Court's decisions in Southeastern Community College v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361, 60 L. Ed. 2d 980 (1979), and Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L. Ed. 2d (1985), for the proposition that the ADA does not require an educational institution to lower or substantially change its standards to accommodate a disabled person, Kaltenberger held that the college had reasonably accommodated the plaintiff's disability, notwithstanding her inability to succeed in the program. See also Zukle v. Regents of the University of California, 166 F.3d 1041 (9th Cir. 1999), finding that accommodations requested by a medical student would work a fundamental alteration of the school's program, and Bowers v. National Collegiate Athletic Association, 974 F. Supp. 459 (D NJ 1997), which addressed the NCAA's grade requirement for "core courses."

Kaltenberger also highlights the wisdom of having clear and consistently followed internal guidelines for evaluating and substantiating disability status, because an institution is not obligated to provided accommodation until a student "provide[s ]a proper diagnosis of ADHD and request[s] specific accommodation." 162 F.3d at 437. The court found that it was reasonable for the school to reject a handwritten note of a medical doctor saying that the plaintiff was being treated for ADHD and to require an authoritative diagnosis of the condition.

ADD can also affect a student's behavior. Although an institution may need to accommodate a disability even when the disability causes behavioral problems, it would not be reasonable to change the institution's disciplinary policies as an accommodation. Bercovitch v. Baldwin School, Inc., 133 F.3d 141 (1st Cir. 1998).

If you need other resources, the Department of Education has a site on ADD and ADHD. Objective descriptions of ADD and ADHD are at http://www.kidsource.com/Heath/add.html and http://www.pendulum.org/related/ADD/disability_named_add.htm. Children and Adults with Attention-Deficit/Hyperactivity Disorder, Internet Resources for Special Children, and the ADD Center Web Index provide links to information about ADD and ADHD. An explanation of students' legal rights under the Rehabilitation Act and the Americans with Disabilities Act can be found at http://www.add.org/content/legal/college.htm.


6. Therapy Dogs


Service dogs frequently are used to aid the blind, and it is now accepted for dogs to aid persons with other physical disabilities. Therapy dogs, by contrast, are emotional aids. Commonly, the dog and its trainer-owner will go to a health care facility or to a treatment program, to aid persons other than the dog's owner. The benefits of animals in health care settings is explained at http://www.dog-play.com/therapy.html:

Visiting with animals can help people feel less lonely, and less depressed. Visits from dogs can provide a welcome change from routine, or the renewal of old friendships. People become more active and responsive both during and after visiting with animals.

An animal visit can offer entertainment, or a welcome distraction from pain and infirmity. People often talk to the dogs, and share with them their thoughts and feelings and memories. Animal visits provide something to look forward to. Stroking a dog or cat can reduce a person's blood pressure. Petting encourages use of hands and arms, stretching and turning.

Similarly, therapy dogs and other animals can provide benefits in educational settings. See http://www.realsolutions.org/animlear.htm, which says:

Animals help children strengthen their contact with the environment. This is a particularly helpful response to utilize when we are working with challenging children. One study . . . used animals in the classroom as part of educational modules on health, nutrition, grooming, association, communication and appropriate behavior. . . . Teachers cited sensitivity to animals, understanding animal needs, ability to relate to an unfamiliar instructor and sensitivity to people among the understandings and attitudes accrued during the course.

A new trend is for persons to obtain a "personal" therapy dog, which they then seek to use as a service dog in all situations. The ADA coordinator for the University of Washington described some of the concerns that are arising from this use of therapy dogs:

There has been much national discussion about service dogs, and at this point the U.S. Justice Department has said that dogs/animals do not have to be certified, and people can ask only is this dog a pet or service animal, and maybe what it does. Anything else is considered discriminatory. Note that Justice has not advised how to respond to the answers one gets. At a meeting in 1999 sponsored by Washington State Human Rights Commission staff to consider current state regulations, a number of persons attended who have emotion or therapy service dogs: their animals help them cope with their mental illness, calm them down, and allow them to go out in public. However, they object to being asked whether these are service animals or are trained because such questions can, as one therapist testified about one of her patients, "unintentionally recapitulate" their original trauma(s), which is often based in conflict with authority figures. So these folks want a don't ask don't tell policy with service animals.

The Department of Justice's rule on service dogs is at 28 CFR sec 36.302(c), which provides:

Service animals--(1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.

(2) Care or supervision of service animals. Nothing in this part requires a public accommodation to supervise or care for a service animal.

See also Appendix B to part 36, at p. 623, which further explains the application of the rule.

One could reasonably question whether an individual who is using a therapy dog is a person with a disability under the ADA. If the person does not have a disability, then restricting the use of the therapy dog will not violate the ADA. Also, under the reasoning of Albertsons, Inc. v. Kirkingburg, __ U.S. __, 119 S. Ct. 2162, 144 L. Ed. 2d 518 (1999), an institution could rely on federal health or safety regulations to bar service or therapy dogs from a particular place. However, there are limits to the institution's ability to restrict animals. In Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997), the Court held that the Food and Drug Administration's regulations restricting service dogs in food manufacturing areas, could not justify a blanket restriction of a service dog from a brewery tour. Only a few of the tour areas were actually in a place where contamination covered by the FDA rule could occur.

Denying a person the use of a service animal can be expensive. In Branson v. West, No. 97C 3538 (ND Ill 1999), the jury awarded $400,000 in damages to a physician because her employer (a federal agency) denied her permission to use a service dog at work. Disability Compliance Bulletin vol. 16, issue. 7, p. 2.

Other useful information and links can be found at http://www.tdi-dog.org/, http://www.dog-play.com/therapy.html, http://www.geocities.com/Athens/2606/toj.htm, http://www.doglogic.com/therapy.htm, http://www.doglogic.com/therapylinks.htm, and http://www.rehabnet.com/aft/index.html.


_________________________________________________________________________


28 C.F.R. sec 35.130(b) provides in relevant part:

(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability--

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity's program;

(vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

. . .

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

(4) A public entity may not, in determining the site or location of a facility, make selections--

(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or

(ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities.

. . .

(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.

(7) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

. . .


Copyright 2000 Sachi Wilson. This document may freely be copied in any form, or modified as the user desires, on condition that you give me notice by email to sachiwilson[at]sbcglobal.net. (Replace [at] with @.) Links welcomed.

 

EVOLVING ISSUES IN ACCOMMODATING STUDENTS WITH DISABILITIES