By Mark Walsh
Crossposted from the School Law Blog
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.
Fry v. Napoleon Community Schools (No. 15-497) 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.
In 2009, officials at the school Ehlena Fry was attending 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.
Ehlena’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.”
James Hermon, one of the lawyers representing the Fry family, said in a statement that “we are very pleased that the United States Supreme Court has granted review to resolve this important issue. This is significant not only for our clients, but for families of students throughout the country who have lacked clarity when attempting to pursue claims for discrimination under the ADA against school districts that have denied children the rights protected by that statute.”
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.
A version of this news article first appeared in the On Special Education blog.