Increasingly, service providers are incorporating the use of animals to assist in the education and treatment of disabled children. Under the American's with Disabilities Act ("ADA"), use of a service animal may be an accommodation for a person with a disability. A recent case out of Illinois illustrates the challenges some school districts face in handling a disabled child's request to bring such animals into the education environment.

In August 2009, an Illinois circuit court issued a temporary injunction requiring a school district to allow an autistic student ("Carter") to bring his dog into the classroom during the time needed for the court to hold a formal hearing on whether the animal qualified as a service dog under the ADA. Carter's mother testified the dog was hypoallergenic, and was specifically trained to handle Carter's impulses to eat things that are not food, running impulsively, and tantrums. However, the School District contended that the dog violated the IEP of another child planning to attend the same school who had a rare lung disease. That child's IEP guaranteed she would not be exposed to any animals.

On appeal, the appellate court affirmed, reasoning that the circuit court made the temporary injunction effective three weeks after its entry to allow the School District sufficient time to accommodate the competing interests of the two special needs children. The court also noted that the School District presented no evidence that the IEP student with the lung disorder would be allergic to the specific type of dog that Carter intended to bring to school. Therefore, the appellate court held that the injury Carter would suffer if denied the right to bring his dog to class outweighed any hardship to the School District or the general public.

The case was remanded back to the circuit court, which still must decide if Carter's dog qualifies as a "service animal". To meet the ADA's definition of a "service animal", the dog must be individually trained to perform tasks for the person with the disability. The court must decide if the above-referenced tasks qualify Carter's dog as a "service animal", which according to the court could take "months" to decide.

In the interim, the Department of Justice is expected to issue new regulations shortly regarding what is considered a "service animal". It is likely the new regulations will clearly state that animals used solely for an individual's comfort are not "service animals" and are not covered by the ADA. The new regulations will also likely limit the scope of service animals to dogs. We will keep you posted when these new regulations are promulgated.