Education and Resources
DOJ Rejects Local BSL in ADA Enforcement
Yesterday, July 26, 2010, was the 20th Anniversary of the signing of the Americans with Disabilities Act (ADA). The Department of Justice (DOJ) took the opportunity to release its “final rule in order to adopt enforceable accessibility standards.” Contained within the exhaustive document is the DOJ’s explicit rejection of the idea that service dogs can be restricted by state and local governments based on breed.
In Subpart A, Section 35.104, “Definitions,” the idea of “Breed Restrictions” is addressed:
“The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks.”
The DOJ goes on to detail the prohibitive difficulty of deferring to local breed restrictions when considering the rights of disabled people to have and benefit from their service dogs. With such a wide variety of breed restrictions from community to community, some based on breed, and some based on size, people with disabilities would be unduly restricted regarding living and travel if deference was given to local breed restrictions. They even go so far as to point out that there have been breed restrictions on German Shepherds in some communities for decades and they have been service dogs during that entire time “without a history of the type of unprovoked aggression or attacks that would pose a direct threat.”
“Pit Bulls” were never specifically mentioned in the section, but it is hard to imagine any other breed was a bigger catalyst for the release of this position. While many other breeds are still restricted and Rottweilers still suffer from some of the same media bias the “pit bull” does, there is just no “hotter” topic in the canine/public safety world than pit bulls and the their role and place in society.
This expressed rejection of breed restrictions is nothing short of huge. In a mere 2 paragraphs the DOJ dismantles the idea that public safety is best served by judging a group of dogs by the way they look. They also point out the silly idea that a service dog that is safe and acceptable in one community is somehow inherently dangerous in another just because its geographic location has changed.
The DOJ makes sure to point out that this isn’t a free pass for all service dogs no matter what. They state that service dogs can be restricted based on individual behavior:
“State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal´s actual behavior or history--not based on fears or generalizations about how an animal or breed might behave.”
There is almost a staggering amount of rational thinking reasoned out in the two paragraph section. Judging dogs on a case by case basis and not on “fears or generalizations,” – imagine that.
(The full text of the “Breed Limitations” section can be found at the end of this article.)
As an end note, the section following “Breed Restrictions” in the Final Rule addresses the issue of “emotional support animals.” Service animals, including animals for physical and psychological disabilities, have to be specifically trained to assist their disabled handlers with their particular needs. This means that dogs that benefit people in other ways without specific training, such as therapy dogs and emotional support dogs are not covered under the ADA. I think it is important to make this distinction because service animals are special and serve a good purpose after going through rigorous training. Not just any dog can be a service animal.
However, in the emerging study of Post Traumatic Stress Syndrome, I hope more programs can be developed to specifically train “emotional support animals” so they can be covered under the ADA. We have an ever-growing understanding of the benefits of the human-canine bond. We also have a growing understanding of just how heavy the toll of combat can be on our soldiers and how deeply other traumatic events can affect us in everyday life. I hope, for the sake of our returning veterans and for survivors of abuse and violence, the benefits of the human-canine bond that are less tangible and more difficult to quantify can be better understood and more widely recognized.
Full Text from Final Rule:
“Breed Limitations. A few commenters suggested that certain breeds of dogs should not be allowed to be used as service animals. Some suggested that the Department should defer to local laws restricting the breeds of dogs that individuals who reside in a community may own. Other commenters opposed breed restrictions, stating that the breed of a dog does not determine its propensity for aggression and that aggressive and non-aggressive dogs exist in all breeds.
The Department does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks. Such deference would have the effect of limiting the rights of persons with disabilities under the ADA who use certain service animals based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others. Breed restrictions differ significantly from jurisdiction to jurisdiction. Some jurisdictions have no breed restrictions. Others have restrictions that, while well-meaning, have the unintended effect of screening out the very breeds of dogs that have successfully served as service animals for decades without a history of the type of unprovoked aggression or attacks that would pose a direct threat, e.g., German Shepherds. Other jurisdictions prohibit animals over a certain weight, thereby restricting breeds without invoking an express breed ban. In addition, deference to breed restrictions contained in local laws would have the unacceptable consequence of restricting travel by an individual with a disability who uses a breed that is acceptable and poses no safety hazards in the individual´s home jurisdiction but is nonetheless banned by other jurisdictions. State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal´s actual behavior or history--not based on fears or generalizations about how an animal or breed might behave. This ability to exclude an animal whose behavior or history evidences a direct threat is sufficient to protect health and safety.”