How do Virginia public schools handle a school-bus conflict between a student who needs a service dog and another student with a severe dog allergy?

Plain-English summary

Two students attending the same Virginia public school might have ridden the same bus. Student A had a service dog but his individualized education plan (IEP) did not require one. Student B had a severe dog allergy. The school division allowed Student A's dog on the special education bus, while his parents wanted him on a regular bus with the dog. The division considered route changes but found no cost-effective way for both students to ride separate regular buses.

The AG concluded that the school board was the appropriate body to resolve the dispute. On those facts, permitting the students to ride separate buses was not unreasonable or unlawful. The opinion did not say that the division had placed both children on regular buses. It said Student A's service dog was permitted on the special education bus, and no cost-effective two-regular-bus option was available.

Currency note

The opinion was issued in 2009. Check current disability, education, and transportation law before applying it to a new dispute.

Background and statutory framework

The AG said the federal Individuals with Disabilities Education Act (IDEA) did not require the division to provide or accommodate Student A's dog because his IEP did not include its use. The AG separately considered Virginia Code section 51.5-44. Assuming the dog was trained and properly identified, the opinion found Student A entitled to be accompanied by it at school. The division had allowed the dog on the bus, so the AG did not decide whether school transportation itself came within that statute's transportation provision.

State law requires free transportation for certain students with disabilities when necessary for educational benefit. Apart from that exception, it permits school divisions to provide transportation. The AG found no statute or case directly deciding the conflict presented by these students' needs, and identified the local school board as the appropriate arbiter.

What the opinion means for you

School boards and families

The opinion approves the separate-bus arrangement on the particular facts supplied to the AG: Student A could take the special education bus with his dog, Student B had a severe allergy, and the division lacked a cost-effective way to put each on a separate regular bus. It does not establish that every proposed bus arrangement involving a service dog and an allergy is lawful. The student's IEP, the access statute, and the available transportation options matter to the analysis.

Common questions

Q: Did Student A ride a regular bus with his service dog?
A: The facts supplied to the AG say the division permitted the dog on the special education bus. His parents asked for a regular bus, and the division could not find a cost-effective way for both students to ride separate regular buses.

Q: Did the AG decide which student had a superior right to a particular bus?
A: No. The AG said the school board was the appropriate arbiter and found its separate-bus solution neither unreasonable nor unlawful on the stated facts.

Q: Did the opinion require the school to provide a service dog under IDEA?
A: No. Student A's IEP did not include a service animal, so the AG said IDEA did not obligate the division to provide or accommodate one. The opinion separately considered Virginia's service-dog access statute.

Citations and references

Statutes:

• Va. Code Ann. § 2.2-505
• Va. Code Ann. §§ 22.1-176, 22.1-216, 22.1-218, 22.1-221
• Va. Code Ann. § 51.5-44 (rights of persons with disabilities)
• 20 U.S.C. §§ 1400 through 1482 (Individuals with Disabilities Education Act)

Case:

• Bradley v. Sch. Bd., 462 F.2d 1058 (4th Cir. 1972), aff'd 412 U.S. 92 (1973), school board operational authority

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-085-Vogel.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

March 18, 2009

The Honorable Jill H. Vogel
Member, Senate of Virginia

Dear Senator Vogel:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask which of two students has the superior right to ride a school bus when one student has a service dog and the other student is allergic to dogs.

Response

It is my opinion that a school board, charged with the responsibility to operate and supervise the public schools, is the appropriate arbiter to resolve a dispute over transportation of pupils. It further is my opinion that based on the facts you present, the decision to permit the two students to ride separate buses is not unreasonable or unlawful.[1]

Background

You state that two students who attend the same public school potentially would ride the same bus to school. Student A is a student with a disability and has been diagnosed with Asperger's Syndrome, an autism spectrum disorder. Student A, who receives education services as prescribed in an individual education plan ("IEP"), is assisted by a service dog although his IEP does not require the use of a service animal. The school division permits the service dog to accompany Student A on the special education school bus; however, his parents have requested that he ride a regular school bus with his service dog. You state that Student B has a "severe" allergy to dogs, and his parents have requested that the service dog not be permitted on the regular school bus. You relate that the school division has considered other options, such as a modification of bus routes, but it does not have a cost effective alternative to permit both students to ride regular, but separate, school buses.

Applicable Law and Discussion

As a student with a disability, Student A is afforded the rights provided under the federal Individuals with Disabilities Education Act ("IDEA").[2] The centerpiece of these rights is a "free and appropriate public education."[3] A student's achievement goals, the educational services to be provided, and the criteria for evaluating progress are contained in the student's IEP.[4] You state the IEP for Student A does not include the use of a service animal. Therefore, under IDEA, the school division is not obligated to provide or accommodate the service dog used by Student A.

Although IDEA does not require the school division to provide or accommodate a service animal, other provisions of law must be considered. Section 51.5-44(B) of the Code of Virginia enumerates certain rights of persons with disabilities, which include

full and equal accommodations, advantages, facilities, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, subways, boats or any other public conveyances or modes of transportation, restaurants, hotels, lodging places, places of public accommodation, amusement or resort, public entities including schools, and other places to which the general public is invited subject only to the conditions and limitations established by law and applicable alike to all persons.

In addition, any "disabled person shall have the right to be accompanied by a dog, trained as a service dog, in a harness, backpack, or vest identifying the dog as a trained service dog" in any of the places listed in § 51.5-44(B).[5]

For purposes of this opinion, I assume that Student A's service animal is trained and wears the appropriate equipment to identify it as a service dog. Accordingly, Student A is entitled to be accompanied at school by his service dog. Based on the facts you provide, it appears the school division has complied with the requirements of § 51.5-44.

The school division has permitted Student A's service dog to accompany him on the school bus. Therefore, it is not necessary for me to opine whether such transportation to and from school is a means of transportation within the meaning of § 51.5-44. However, I note that state law requires school divisions to provide transportation to school at no cost for students with disabilities when "enrolled in and attending a special education program" provided pursuant to § 22.1-216 or § 22.1-218 "if such transportation is necessary" for the student to obtain the educational benefit.[6] Apart from that exception, state law permits but does not require school divisions to provide transportation to students.[7]

I find no provision of state or federal law that applies to the situation you describe, nor do I find any case law on point. You offer a number of arguments and documents proposed by the two sides in this dispute; however, none are controlling.

Some disputes between parties are best resolved by appealing to reason and compromise and not by recourse to laws and the court system. A local school board has the power to operate, maintain, and supervise the public schools.[8] Therefore, the school board is the appropriate arbiter to resolve the dispute.[9] The solution reached permits the students to ride separate buses to school. Although the parent of one student is not pleased with the solution, I find no statutory law or case law to suggest that the compromise is unlawful.

Conclusion

Accordingly, it is my opinion that a school board, charged with the responsibility to operate and supervise the public schools, is the appropriate arbiter to resolve a dispute over transportation of pupils. It further is my opinion that based on the facts you present, the decision to permit the two students to ride separate buses is not unreasonable or unlawful.[10]

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
Attorney General

1. Attorneys General defer to interpretations of the agency charged with administering law unless the agency's interpretation clearly is wrong. See, e.g., 2002 Op. Va. Att'y Gen. 293, 294 and opinions cited therein.

2. See 20 U.S.C.A. §§ 1400 to 1482 (2000 & Supp. 2008) (codified in scattered sections).

3. Id. § 1412(a)(1)(A) (Supp. 2008).

4. See id. § 1414(d)(1)(A) (Supp. 2008).

5. VA. CODE ANN. § 51.5-44(E) (Supp. 2008). "As used in [Chapter 9], 'service dog' means a dog trained to accompany its owner or handler for the purpose of carrying items, retrieving objects, pulling a wheelchair, alerting the owner or handler to medical conditions, or other such activities of service or support necessary to mitigate a disability." Id.

6. See VA. CODE ANN. § 22.1-221(A) (2006).

7. See § 22.1-176(A) (2006).

8. See Bradley v. Sch. Bd., 462 F.2d 1058, 1067 (4th Cir. 1972), aff'd 412 U.S. 92 (1973).

9. See id.; see also supra note 1.

10. See supra note 1.