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 children attending the same Virginia public school would have ridden the same school bus. Student A has Asperger's Syndrome and is helped daily by a service dog, even though his IEP does not formally require the dog. Student B has a severe allergy to dogs. The school division could not find a cost-effective way to route both students together with the dog onboard, so it decided that Student A would ride one regular bus with his service dog, and Student B would ride a different regular bus. Student A's parents objected; they wanted Student A's bus to be the regular bus, not a different one.

Senator Jill Vogel asked the Attorney General who, between the two students, had the "superior" right to ride a given bus. The AG (now William Mims, McDonnell having stepped aside to run for Governor) declined to crown either side. Under Virginia law, the school board is the appropriate body to resolve transportation conflicts between students; the school division had complied with the federal IDEA framework (because Student A's IEP did not require a service animal, the school division was not separately obligated to provide one) and with Va. Code § 51.5-44 (which guarantees a person with a disability the right to be accompanied by a service dog in public accommodations, and the school had let the dog ride). Given that, putting the two students on separate buses was within the school board's discretion and was not unlawful.

The opinion is a careful piece of work that pushes back against the framing of the question. There was no statute that mandated one outcome. The AG declined to manufacture one.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Section 51.5-44 has been amended since 2009, and IDEA and ADA case law continues to evolve on service-animal access in schools.

Background and statutory framework

The case lives at the intersection of three legal regimes. The federal IDEA (20 U.S.C. §§ 1400 to 1482) guarantees a "free and appropriate public education" to students with disabilities and centers the IEP as the document that defines what services and accommodations the school must provide. If a service animal is not in the IEP, IDEA does not separately require the school to accommodate one as part of FAPE.

Section 51.5-44 of the Virginia Code is the state's public-accommodations protection for persons with disabilities. Subsection (B) lists the places of public accommodation (transportation, restaurants, hotels, public entities including schools, and so on) where a person with a disability is entitled to full and equal access. Subsection (E) is the service-dog right: a "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 those places.

State school transportation law (§§ 22.1-176, 22.1-216, 22.1-218, 22.1-221) ties together: school divisions generally have discretion whether to provide transportation; they must provide transportation at no cost for special education students if it is necessary to their educational benefit; and the school board has broad management authority over how to do that.

What the AG concluded, point by point

IDEA imposes no obligation here. Student A's IEP did not require a service animal. Therefore IDEA did not separately make the school responsible for accommodating one.

Section 51.5-44(E) gave Student A the right to be accompanied by the service dog. The school division did not contest this right. It allowed the dog on the school bus, which was the relevant point of access.

No statute resolves the conflict between the two students' rights. Section 51.5-44 protects Student A. Statutes generally do not address an allergic student's "right" to be free from animals. Likewise, no IDEA provision controls the choice between two regular-bus options.

The school board is the appropriate decision-maker. Citing Bradley v. School Board, the AG identifies the school board as the entity vested with the operational authority to make this kind of practical call.

Separate buses is not unreasonable or unlawful. Both students get the bus service they need. Student A gets to ride with his service dog. Student B does not have to share an enclosed bus with a dog that triggers a severe allergy. The school division spent reasonable effort exploring alternatives.

What this meant at the time

For school divisions and school boards (as of 2009)

The opinion was operationally useful. It told boards: when two students' needs collide and there's no controlling statute, document the alternatives you considered, pick a workable compromise, and your decision will likely withstand legal scrutiny.

For families of students with service animals (as of 2009)

You retained the § 51.5-44(E) right to be accompanied by your service dog. But the specific configuration of how the school provides transportation (which bus, which route) is within the school board's discretion. The opinion did not give parents a veto over the board's reasonable accommodations.

For families of students with severe allergies (as of 2009)

If the school made the same choice (offering you a different bus from the student with the service animal), that arrangement had AG support as a reasonable resolution. Allergy-only objections do not override the disability-rights statute, but they are a legitimate factor for the board to consider in transportation planning.

For disability rights attorneys (as of 2009)

The opinion does not draw sweeping conclusions about service animals in schools generally. It is fact-specific, deferential to the school board, and narrow. Litigation over service-animal access at public schools requires looking at the IEP, the § 51.5-44 framework, and ADA Title II (which is not discussed in this opinion).

Common questions

Q: Did the AG say the allergic student "won"?
A: No. Neither student "won." The opinion explicitly declined to identify which student had a "superior" right and instead said the school board is the appropriate arbiter and its separate-buses choice was lawful.

Q: Could Student A's parents have forced the school to put both students on the dog-permitted bus?
A: Not under this opinion. The school division had attempted route modifications and found no cost-effective alternative. The AG saw the separate-buses solution as within the board's discretion.

Q: What if Student A's IEP did require a service animal?
A: The IDEA analysis would have shifted. With a service animal as a written-in accommodation, the school would have had to provide it (including, presumably, on the school bus), and other students' allergies would have to be accommodated around that.

Q: Does the ADA come into play?
A: The 2009 opinion does not analyze the ADA. ADA Title II covers public schools and contains a service-animal provision that has been the subject of significant DOJ guidance over the years. Anyone with a current dispute should consult ADA materials in addition to this Virginia opinion.

Q: Why is the opinion signed by William Mims and not Bob McDonnell?
A: Bob McDonnell resigned as Attorney General in early 2009 to run for Governor. William Mims, his successor, took over and issued opinions during the transition period.

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. School Board, 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.