Cross-posted from the School Law Blog
By Mark Walsh
The U.S. Supreme Court has asked the Obama administration on whether it should take up a special education case stemming from a dispute over whether a student with cerebral palsy could bring her doctor-prescribed service dog to school.
The legal issue in the case of Fry v. Napoleon Community Schools (No. 15-497) is bit more technical than the dispute over whether a goldendoodle named Wonder could accompany and help the girl at school.
The legal 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 Americans with Disabilities Act of 1990 or the Rehabilitation Act of 1973. Those latter statutes provide for damages, which the IDEA does not.
Stacy and Brent Fry, the parents of now 11-year-old Ehlena, sued under the ADA and the Rehabilitation Act after the Napoleon district in 2009 barred Wonder from helping Ehlena, except for a short trial period when the dog was required to remain in the back of the classroom, court papers say. Ehlena was 5 at the time the lawsuit was filed.
The school district said in court papers that Ehlena’s individualized education program called for a human aide to assist her, so the dog wasn’t necessary.
The girl’s parents 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 ADA and the Rehabilitation Act.
The parents, who had begun homeschooling Ehlena 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 continued to press their suit for damages under the ADA and the Rehabilitation Act, but they lost in two federal courts.
Although damages are not available under the IDEA, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, 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.”
Congress enacted a law known as Handicapped Children’s Protection Act of 1986 in response to a 1984 Supreme Court decision, in Smith v. Robinson, that the IDEA was the exclusive statute for a student with a disability to assert an education-related claim, even if a claim might exist under other federal disability laws or the Constitution.
Congress wanted to make clear that families could press the rights of students with disabilities under other laws, such as the Rehabilitation Act. (The ADA came along later.)
But the 1986 measure does require that if education-related claims brought under other laws are also available under the IDEA, then the family must exhaust state administrative remedies under the IDEA first.
Some six other federal circuits have adopted a rule similar to that adopted by the 6th Circuit. But the U.S. Court of Appeals for the 9th Circuit, in San Francisco, has ruled that whether a plaintiff could have sought relief available under the IDEA is irrelevant, and what matters is whether the plaintiff actually sought relief available under the IDEA.
The Fry family urged the Supreme Court to take up their case to settle the conflict among the circuit appeals courts.
In a brief order on Jan. 19, the Supreme Court asked the U.S. solicitor general to file a brief expressing the views of the federal government. It is a tactic the justices take with some regularity in special education cases.
The solicitor general’s office has no deadline for filing its views, and it will probably take at least several months to respond to the court’s order.
Photo: Ehlena Fry, her service dog Wonder, and parents Brent and Stacy in 2012. Courtesy American Civil Liberties Union of Michigan.