In a comment to the service dog v. therapy dog blog entry, I promised that I would follow-up with an exploration of whether the Department of Justice regulations with respect to service dogs and how they differ from therapy dogs and the corresponding difference in treatment with respect to the ADA, would survive a challenge under either the administrative procedure act or the equal protection clause of the 14th amendment to the U.S. Constitution. This blog discusses that.

It is very difficult for a regulation that has gone through proper rulemaking to be thrown out by the courts. For a regulation that has gone through proper rulemaking to be thrown out by the courts, that regulation must be found to be arbitrary, capricious, or manifestly contrary to the statute. Chevron, USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837, 844 (1984). Manifestly contrary to the statute is the easier term, but what does it mean for a regulation to be arbitrary and capricious? An agency action is arbitrary and capricious if the agency relies on factors that Congress did not intend for it to consider, offers an explanation for its decision that runs counter to the evidence before the agency, fails to consider an important aspect of the problem, or is so implausible that it cannot be ascribed to a difference in view of or the product of agency expertise. Air Transport Association of America, Inc. v. National Mediation Board, 719 F. Supp. 2d 26, 30 (D.C. Cir. 2010).

Does the Department of Justice meet this burden? They probably did. Whenever a final regulation comes into place, the agency is required to do a section by section analysis in response to public comments. As can be expected, the Department of Justice received extensive comments with respect to service dog v. therapy dogs. These comments were so extensive that the Department of Justice literally spends over 7 pages discussing the particular rules pertaining to service dogs, the comments submitted, and why the Department of Justice decided to do what it did. See e.g. Appendix a to Part 35-Guidance to Revision to ADA Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services at discussion of “service animal.” In the end, the Department of Justice says that it wants to make sure that any such dog is working (recognition and response), rather than providing comfort, and so long as that is the case, it doesn’t matter what the disability is. Id.

The harder question is whether such a distinction is contrary to the statutory intent of the ADA. As we know from a discussion of Olmstead, the ADA requires that people with disabilities be integrated into the community. Is the Department of Justice through this regulation violating that intent. In order to show that, the plaintiff would have to show that the choice the Department of Justice made in insisting that a dog engage in recognition and response rather than just comfort is a choice that Congress would not have sanctioned. Chevron 467 U.S. at 845. If that choice was a reasonable accommodation of conflicting policies committed to the agency’s care by statute, then the court will not disturb it. Id. Which one is it? Recognition and response v. comfort certainly seems like a reasonable distinction. However, that distinction may be narrower than it seems. For example, a person with anxiety may need just some kind of a cue so as to redirect themselves. Would simply looking at the dog do the trick or would the dog need to do something, however subtle, to redirect the person? That may depend upon the person. That “however subtle,” would that be enough to meet the recognition and response language of the Department of Justice? If not, an argument might be able to be made that the regulations is contrary to statutory intent because it is not allowing for the service animal to perform cognitive behavior therapy techniques (anything whatsoever that can be done that redirects the person so the attack doesn’t continue). In short, it is hard to believe that the Department of Justice regulation could be considered arbitrary and capricious considering their extensive response to all the comments that were sent into it, and considering the recognition and response standard that it came up with, which seems on its face to be reasonable. That said, there is a concern about whether the standard is not broad enough so as to allow for cognitive behavior therapy techniques (that name sounds a little bit scary, but it is really quite simple. For example, it may be as simple as when a person recognizes an attack is coming on, that they do breathing exercises or react to a visual cue from someone else or an animal).

What about the equal protection clause? The problem there is that we never know what category of equal protection jurisprudence persons with disabilities fall into. With respect to employment, per Board of Trustees of the University of Alabama v. Garrett , they fall into the rational basis class. With respect to accessing the courts, persons with disabilities fall into the intermediate scrutiny class or higher. We also know per Tennessee v. Lane, that the classification of persons with disabilities with respect to equal protection jurisprudence depends entirely upon the facts. What class would persons with disabilities fall into with respect to a Department of Justice regulation. If persons with disabilities would fall into the rational basis class, then the regulation would stand as the regulation is most probably a rational way to carry out the ADA. If persons with disabilities fall into the intermediate scrutiny class, then the Department of Justice would have to show that the regulation is based upon very good reasons. Could they show that? It’s possible they could, though the narrowness of the definition of recognition and response with respect to persons with psychiatric disabilities may be an issue. If the person with disabilities for these purposes was in the highest class, suspect class, then the Department of Justice would have to show a compelling reason for its definition. While it would be unlikely to Department of Justice could meet such a standard, it would also seem to be unlikely that persons with disabilities would fall into a suspect class for purposes of the Department of Justice regulations. With respect to deciding the class that persons with disabilities would fall into, it would be very helpful to know just what is the history of the federal government with respect to discriminating against persons with disabilities. We know from Tennessee v. Lane that there is an extensive history of the State’s discriminating against persons with disabilities. However, since this is a federal regulation, we would need to know what is the history of the federal government with respect to discriminating against persons with disabilities before we could begin to decide what equal protection class persons with disabilities would fall into with respect to this fact pattern. If the person with a disability could show that the Department of Justice regulation involves any of: basic constitutional guarantees, basic rights, class of cases implicating judicial services, or fundamental rights- Tennessee v. Lane 541 U.S. 509, 522, 524, 529, 531, 534 (2004)-, then the Department of Justice regulations would be much easier to challenge.

So, how can we break this down? With respect to the Department of Justice regulations, it’s hard to believe that the regulation could be considered arbitrary and capricious considering how the case law defines that phrase. It is possible that you could argue that the regulation goes beyond statutory intent since it seems to involve a distinction that may unduly restrict certain techniques oftentimes used by people with psychiatric/mental disabilities to deal with the situation, of which a service dog/comfort dog may play a critical role in. With respect to the equal protection clause, we need to figure out just what class persons with disabilities would fall into under this fact pattern. Unlike any other class of people, persons with disabilities equal protection class that they fall into depends entirely upon the facts. Id. at 530. In determining that, it would be very helpful to know just what is the history of the federal government with respect to discriminating against persons with disabilities. Then, we would also have to consider whether the regulation encompasses basic constitutional guarantees, basic rights, class of cases implicating judicial services, or fundamental rights. It would seem that for the Department of Justice regulation to fail under an equal protection clause analysis, the court would have to be convinced that persons with disabilities in the situation fall into a class of people higher than rational basis. For the reasons discussed above, even then, it still may be difficult to be successful in an equal protection challenge if people with disabilities were found to be in the intermediate scrutiny class, and it is hard to believe that in this scenario, people with disabilities would be found to be in the suspect class.

In short, a challenge to this regulation under the administrative procedure act is going to be really tough. The best approach is going to be to try to show that the service dog regulation is not consistent with the ADA’s statutory intent. With respect to the equal protection clause, due to the thoroughness of the response to comments from the Department of Justice, any equal protection challenge is going to be extremely difficult.

Finally, please note that this blog entry deals with title II and title III of the ADA strictly. The title I regulations, which are the obligation of the EEOC and not the Department of Justice, have not taken this approach with respect to service dogs and comfort dogs.