High Court Takes Case Involving Service Dog; Denies Rehearing on Union Fees

By Mark Walsh — June 28, 2016 4 min read
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The U.S. Supreme Court on Tuesday agreed to take up a special education case stemming from a dispute over whether a Michigan girl with cerebral palsy was permitted to bring her service dog to school.

Meanwhile, on a day when they issued housekeeping orders after its last day of opinions, the justices put an end to the case over public-employee union fees by denying the rehearing motion of a group of non-union teachers.

In March, after the February death of Justice Antonin Scalia, the court had deadlocked on the merits of the union-fees issue in Friedrichs v. California Teachers Association (Case No. 14-915), in which the non-union teachers challenged a nearly 40-year-old precedent permitting teachers’ unions to collect service fees from non-union members.

The non-union teachers had filed a rehearing petition asking the court to hold over the case for when Scalia’s seat is filled. The court stalled action on the petition by repeatedly rescheduling it from one of its private conferences to the next. But on Monday, at their final conference of the term, the justices turned down the rehearing petition, which was reflected in a brief order Tuesday: “The petition for rehearing is denied.”

The group behind the challenge, the Center for Individual Rights, had even put out a statement Monday when it thought the rehearing petition was going to be held over for the summer. It quickly pulled back the statement when it realized the court had one more private conference.

On Tuesday, Terry Pell, the center’s president, issued a statement expressing disappointment with the court’s action. “We continue to believe that forcing individuals to subsidize political speech with which they disagree violates the First Amendment,” he said. “We will look for opportunities to challenge compulsory union dues laws in other cases and continue our efforts to stand up for the rights of teachers and public sector workers across the country.”

Now, the issue of whether the high court’s 1977 decision in Abood v. Detroit Board of Education will remain a foundation of the existing order in public-employee unionism must await another case, and likely the filling of Scalia’s seat.

The Case of Wonder, the Service Dog

Meanwhile, the justices agreed on Tuesday to take up Fry v. Napoleon Community Schools (No. 15-497), which raises a legal question that is a bit more complicated than the underlying battle of whether student Ehlena Fry could bring her service dog, Wonder, a goldendoodle, to school.

Officials at Fry’s school in 2009 had refused to allow the girl to bring Wonder to school (though they briefly relented for a period of a few months, when the dog was required to remain in the back of the classroom). The school district said in court papers that the girl’s individualized education program, or IEP, called for a human aide to assist her, so the dog wasn’t necessary.

Fry’s parents removed the girl from the Napoleon public schools and filed a complaint with the U.S. Department of Education’s office for civil rights, which investigated and concluded that the district was violating the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.

The parents, who had begun home schooling Fry during the conflict, declined to re-enroll her in the Napoleon schools following the OCR ruling, believing that the girl would face difficulties after the dispute.

They sued for damages under the ADA and the Rehabilitation Act, but they lost in two federal courts. They appealed to the Supreme Court, and the justices asked the Obama administration to weigh in on the legal question in the case.

That question is whether a 1986 federal statute that amended the Individuals with Disabilities Education Act requires families to exhaust procedures under the IDEA when they are suing under the ADA or the Rehabilitation Act. Those latter statutes provide for damages, which the IDEA does not.

Although damages are not available under the IDEA, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had held in the Fry case that a child with a disability who brings a damages claim under the ADA and the Rehabilitation Act must first exhaust IDEA proceedings “when the injuries alleged can be remedied through IDEA procedures, or when the injuries relate to the specific substantive protections of the IDEA.”

In a brief filed with the justices on May 20, the U.S. solicitor general’s office said the 6th Circuit was incorrect when it ruled that the Fry family must exhaust procedures under the IDEA when they brought claims under the ADA and Rehabilitation Act.

“Whether and how the exhaustion requirement applies to circumstances where the plaintiff does not directly request relief that is available under the IDEA is frequently litigated,” the solicitor general’s brief said. “The proper resolution of that question has considerable practical significance, especially for plaintiffs seeking to vindicate the rights of children with disabilities.”

The case will likely be set for argument sometime this fall.

Photo: Ehlena Fry, her service dog Wonder, and parents Brent and Stacy in 2012. Courtesy American Civil Liberties Union of Michigan.

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A version of this news article first appeared in The School Law Blog.