Fry, Exhaustion, and Service Dogs: Why the Supreme Court’s Decision About a Dry Legal Issue Matters

The Supreme Court recently heard oral arguments in the case of Fry v. Napoleon Community Schools to decide whether children with disabilities have to “exhaust their administrative remedies” before going to court to enforce their right to use a service animal.

Ehlena Fry’s parents filed suit against their school district after the school refused to allow Ehlena to bring her service dog to school. Ehlena has cerebral palsy and her service dog, Wonder, was trained to do things like retrieve dropped items, help her balance when she used her walker, open and close doors, turn on and off lights, help her take off her coat, and help her transfer to and from the toilet. In October 2009, Ehlena wanted to attend school with Wonder’s help. The school refused her request. After 8 months and nearly at the end of the 2009-2010 school year, the school finally agreed to a 30 day trial period. During the trial period, the school continued to violate the law by not allowing Wonder to perform tasks he was trained to perform. Wonder had to remain in the back of the room during classes. The school would not allow him to accompany Ehlena during recess, lunch, computer lab and library. The school also prevented Wonder from accompanying Ehlena during activities like walking the track during “Relay for Life,” a school play and field day. The school even required Ehlena to demonstrate, in front of several adults, how she used Wonder to transfer to and from the toilet. After the trial period, the school refused to even recognize Wonder as a service animal. Ehlena’s parents eventually moved and enrolled Ehlena in a school that welcomed her and her service dog with open arms. Ehlena’s parents are suing for damages but this case really isn’t about money. It is about the right of a little girl to use her service animal, the right to dignity, and the right to autonomy and independence. It is about the ability to enforce the right to use a service animal in a timely way rather than being dragged through a lengthy, costly, and unnecessary process.

To understand, it is important to understand some basics about the law. First, the Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities, including discrimination that takes the form of denying access with a service dog. In short, the ADA requires that people with service dogs be allowed to access public places (Title III of the ADA) and state and local government offices, including schools (Title II of the ADA). To be clear, pets aren’t allowed. Only service dogs, meaning dogs who perform work or a task related to an individual’s disability, are allowed. Generally speaking, if your rights under Title II or Title III of the ADA are violated, you can go directly to court to enforce your rights.

A different law, the Individuals with Disabilities Education Act (IDEA), requires schools to provide a free appropriate public education (FAPE) to children with disabilities. The law sets out procedures for finding and evaluating children with disabilities and for identifying whether children require special education and related services. Before a child qualifies for services under IDEA, the school must hold a meeting to decide if the child should be evaluated and what evaluations are needed; evaluate the child; and hold a second meeting to review the evaluations, decide if the child is eligible, and develop an individualized education plan (IEP). This is how children obtain a wide array of educational services like specialized reading instruction, speech and language therapy, and social skill instruction. After that, if there is a disagreement, the parents can request an administrative hearing. Generally, parents can’t go to court until they have completed this lengthy and costly process. This is called exhaustion of administrative remedies. Despite what school attorneys claim, it is not a simple process for parents.

When children try to attend school with their service dogs, a right they hold under the ADA, schools that are resistant say the service dog is not required under IDEA. They argue that the parents have to go through the lengthy IDEA process before they can go to court under the ADA. Lower courts have often agreed with school districts. This is true even if the parent is not asking the school to provide any special education or related service and is only asking that the child be allowed to attend with the child’s service animal. Because the parent could receive a remedy under IDEA, some lower courts have said, the case has to go through the IDEA administrative hearings process.

So, under these lower court holdings: if the local movie theater, hospital, or town hall refuses entry to a person with a service animal, that person can go straight to court to enforce their rights under the ADA. If a school refuses to allow a student to enter with a service animal, that child is forced to go through the lengthy and costly IDEA process before she can go to court to enforce her right to bring her service animal. While that happens, the child has to attend school without her service animal, putting the critically important bond between the child and service dog at risk. That’s just wrong. Let’s hope the Supreme Court agrees.

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