The ADA Restoration Act, Stadium Seating, and Animals in the Classroom

In the past year, there have been more and more reports about the benefits of therapy dogs for autistic children at home and at school. There’s also been at least one instance in which a therapy dog was excluded from the schoolbus and a preschool, as happened to 4-year-old Jayden Qualis in Manteca, California.

Currently, Congress is considering the ADA Restoration Act (HR 3195 and S 1881), which defines disabilities more broadly than some other recent court decisions, and therefore has higher education officials concerned. HR 3195 amends

……the Americans with Disabilities Act of 1990 to: (1) redefine “disability” as a physical or mental impairment, a record of a such impairment, or being regarded as having a such impairment; and (2) define additional terms, including “mental impairment” and “physical impairment.”

At the same time, the Department of Justice is proposing new regulations that would “limit the accommodations universities and other entities must provide under the existing law,” according to the June 17th Chronicle of Higher Education (subscription only). The new regulations call for:

(1) A decrease in the proportion of seats that an “assembly area”—such as a stadium or sports arena—has to make accessible to people who use wheelchairs:

“Now that figure is about 1 percent, with the exact proportion depending on the size of the venue. A stadium of 5,000 seats, for example, must provide space for 51 wheelchairs. Stadiums larger than that must provide one more space for every 100 additional seats. Under the proposed new regulations, a stadium of 5,001 seats would have to provide space for 36 wheelchairs. One more space would be required for every 200 additional seats a stadium has. For a stadium with a 50,000-person capacity, that would mean 261-as opposed to 501-handicapped-accessible spots.”

(2) Limits on service animals, which are to be distinguished from “emotional support animals”; the latter are not covered under federal law:

“Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being are not service animals,” the Justice Department said in an early copy of the proposed regulations posted online.

Support animals, like ferrets and snakes, have been a sticking point for colleges, where students have asked to keep them in residence halls and take them to class.

“The arguments have been made with increasing frequency in recent years that lots of animals other than traditional service animals should qualify,” said Michael R. Masinter, a professor of law at Nova Southeastern University. The new regulations would define service animals as those that are specially trained to perform a demonstrable task. That definition may still include “psychiatric-service animals” that remind their owners to take medication or that interrupt incidents of cutting or other self-mutilation.”

The decrease in the proportion of seats for people with wheelchairs does not directly affect autistic individuals, but it certainly affects individuals with disabilities. A literal decrease in the numbers of places for disabled individuals in a public setting is a change in the wrong direction.

The proposed regulations about service animals vs. “emotional support animals” need to be considered as there is more interest for autistic children to be accompanied by therapy dogs in public settings, such as schools. Will arguments be made distinguishing a visually impaired person’s need for a seeing eye dog, in contrast to an autistic child’s need for a therapy dog to calm and lessen her or his anxiety?

And, there is generally a lot of hesitation to referring to autism and autism spectrum disorders in the category of “mental disability/impairment/health, etc.” But what if recourse to such categories is necessary to ensure that an autistic child can have a therapy dog in school with them?