Service Dogs in Schools

Many people with disabilities have service dogs. Children with service dogs may bring them to school to assist them. Sometimes schools resist. A recent Supreme Court case, Fry. v. Napoleon Community Schools, No. 15-497 (U.S., Feb. 22, 2017), <>, helps clarify when objections should be made through administrative proceeding and when students can file a lawsuit

E.F. has cerebral palsy, and uses a service dog. She wanted to bring the dog to school, but the school initially declined because it thought using a human aide to help her would be sufficient. Her parents requested review by the Department of Education, which ruled that the service dog should be allowed. The district announced that it was prepared to comply, but after a subsequent meeting with the principal, the parents lost confidence in the school’s willingness to cooperate, and transferred E.F. to a school in another district. They then sued the first district for discriminating against E.F. based on her disability. The question that reached the Supreme Court was whether E.F. had to go back through the Department of Education administrative process before suing.

Disability rights in education are primarily based on three federal laws. The first is the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., <>. The IDEA requires school districts to allow children with disabilities a free and appropriate public education (FAPE) through the development of individual education plans (IAPs) for each child with a disability. Objections to the failure to provide a FAPE or insufficiency of an IEP are addressed through an administrative procedure through the Department of Education.

The second law is Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, <>, prohibits discrimination on the basis of disability in any federally funded program, federal administrative program, or the Postal Service. This is similar to the third relevant law, Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 to 12134, <;, which prohibits discrimination on the basis of disability in all state and local government activities. Both of these laws can be enforced by private lawsuits.

A common rule in administrative law is that before someone can take an issue to court, they first have to go through the administrative process. The primary reason for this is that if the administrative process resolves the problem, the courts don’t have to deal with it. In the case of the IDEA, the law says that suits brought under other laws do not need to go through the IDEA administrative process, but claims under the IDEA do. The Court had to decide what to do with a claim that could be brought under more than one of the relevant laws.

The Court ruled that the key question was what violation was the crux of the complaint. If the claim is more of a challenge to the sufficiency or administration of an IEP or other failure to provide a FAPE, then it’s an IDEA issue and the administrative process has to be used. If the claim is more of a discrimination argument, then it goes to the Rehabilitation Act or the ADA and the plaintiff can go directly to court.

The Court suggested two guidelines to consider in reviewing this issue. If the claim could be brought had it happened elsewhere than in a school setting, or if it could be brought by someone other than a student, it’s probably not an IDEA issue. (Justices Alito and Thomas disagreed with the use of these guidelines. They thought they might be misleading. That warning suggests that lower courts are likely to consider them endorsed by the majority and use them in most cases.)

After announcing the standards, the Court sent the case back to the lower courts to decide whether it should be heard in the courts or not. Were it not for one caveat added by the Court, I would have expected the lower courts to rule the case should now be heard in court. The last complication is that if a child starts with an administrative proceeding, but then switches to filing a suit before the procedure is fully completed, that may be seen as evidence that the claim is really an IDEA claim. Because E.F.’s parents had started with the IDEA procedure, the Court ordered the lower courts to consider that question as part of their analysis.

If you have a child with a disability and you’re having difficulty with their school in panning their education, you may want to talk to a lawyer with experience in education matters. Among the issues you’ll probably want to discuss is what the problem really is. Whether it’s primarily an issue with the IEP or an issue of discrimination is likely to affect what procedure you may need to use to resolve the problem, how much it may cost, and how long it will take. You’ll probably have to consider all of those variables in deciding how to go forward.


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