Special Education

Service Dog Center Stage in Major Special Education Case

By Mark Walsh — October 25, 2016 9 min read
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When the U.S. Supreme Court hears Ehlena Fry’s case on Oct. 31, the now-12-year-old girl with cerebral palsy will be in the audience, though she no longer requires the service dog at the center of her federal disability-rights case against a Michigan school district. The district refused to allow the animal to accompany Ehlena when she was in kindergarten.

Wonder, a fluffy goldendoodle who helped Ehlena with her mobility for seven years, including several years at a neighboring district that welcomed the dog, will also be in Washington. The “retired” service dog will perhaps make an appearance outside the Supreme Court after the oral arguments in Fry v. Napoleon Community Schools (Case No. 15-497). (Ehlena’s parents and lawyers felt it would be disingenuous to claim that the girl needed the dog in the Supreme Court when she no longer relies on him in school.)

“Wonder gave her the mobility support that she needed to learn how to move throughout her environment,” Stacy Fry, Ehlena’s mother, said here recently. “She was able to pull to stand using him. She was able to transfer from her walker to her chair utilizing him as the bridge. Eventually, that working relationship developed into [Ehlena] being able to figure out how to do it on her own.”

The central question in the family’s underlying lawsuit is whether school officials discriminated against the girl in violation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 when they refused, aside from a short trial period, to allow Wonder to aid Ehlena in school.

In taking up the case, the justices will address a fairly technical, but important, question arising out of that suit: whether the Fry family must exhaust administrative remedies under the Individuals with Disabilities Education Act before they can pursue their suit for damages under the other federal disabilities laws.

“We didn’t dispute the fact that she was receiving an appropriate education” under the IDEA, said Michael J. Steinberg, the legal director of the American Civil Liberties Union of Michigan, which represents the Fry family. “That was never an issue here. What we contended was that [Ehlena] was entitled to bring the dog as an accommodation to help her become independent. … We argue that we didn’t need to exhaust the administrative remedies, which are very time-consuming, emotionally draining, and can be expensive.”

District Pushes Back

Neal K. Katyal, a Washington lawyer representing the Napoleon district and the Jackson County Intermediate school district, an educational service agency that serves multiple districts on special education and other matters, says in a brief that “Congress struck a balance between the [IDEA] and other laws that protect the rights of children with disabilities.”

While the main federal special education law does not limit students’ rights under the ADA and the Rehabilitation Act, it does require that if parents seek “relief that is also available under the IDEA, they must first attempt to obtain that relief through the IDEA’s procedures,” the school district’s brief says.

A victory for the Frys in the case would mean a revival of their lawsuit and the chance to have the courts declare that Ehlena and other children in her position may bring their service dogs to school.

Such complexities of federal civil rights laws were far from the minds of Brent and Stacy Fry in 2009 as they prepared for then-5-year-old Ehlena to enter school at Ezra Eby Elementary School in the Napoleon district, which is some 30 miles west of Ann Arbor, Mich.

Ehlena was born in India and adopted by the Frys just before her first birthday. As she approached school age, Ehlena received a prescription for a service dog to help with her spastic quadriplegic cerebral palsy, a severe form of the disease that limits her motor skills and mobility but not her cognitive abilities. A service dog could help steady Ehlena as she moved about with a walker, could pick things up for her, and perform other tasks.

Ehlena Fry, a 6th grader who has cerebral palsy, walks to class at Manchester Middle School in Manchester, Mich. She is the focus of a high-profile U.S. Supreme Court case that centers on her previous district’s refusal to allow her use of a service dog in her elementary school. In the Manchester schools, Ehlena used the dog’s services for several years, but now is more independent.

“We sought to get a service dog for her so that she could reach a level of as much independence as possible,” said Stacy Fry, 38, who recently went back to work in clinical research at the Division of Rheumatology at the University of Michigan.

The Frys had turned to the local community to raise some $13,000 to pay for the 10 days of training that Ehlena and Wonder would have to undergo together. The dog himself, which was donated to the family by an organization called 4 Paws for Ability, had undergone more than a year of training as a service animal.

“We were very blessed to have people who donated their time and their energy,” said Brent Fry, a soft-spoken 39-year-old former sales manager for Kellogg Co., who is facing his own medical challenge: He is battling a form of brain cancer.

The Frys believed that the Napoleon district would welcome the dog, based on signals from the principal at Ezra Eby Elementary.

But in October 2009, when Ehlena brought Wonder to school for the first time, they met a different reaction. After one day, the parents were told that the principal had received complaints that some students were fearful of the dog. The district told them it needed more time to research the issue.

By December, school officials told the Frys that Ehlena did not need a service dog in school because, under her individualized education program for special education services, she had a one-to-one educational aide who could perform the same tasks as Wonder, court papers say.

School officials were also concerned, court documents indicate, about student or staff allergies to the dog; about disruption in the classroom, especially for children as young as Ehlena’s kindergarten peers; and about phobias that some students had of dogs.

Jim Graham, the superintendent of the Napoleon district, declined an interview request via email, citing advice from the district’s lawyers. Katyal, a former acting U.S. solicitor general under President Barack Obama, who will argue the district’s case in the Supreme Court, also declined to comment.

Francisco M. Negrón Jr., the general counsel of the National School Boards Association, which has filed a friend-of-the-court brief on the side of the Napoleon district, said in an interview that schools may have legitimate concerns about how a younger student controls a service dog and “whether children … will be continuously distracted by the presence of a large animal, or of an animal in the classroom, such that their education may be impacted.”

“These are all issues that the school district takes into consideration and may be one of the reasons why a school district may opt for not including a service animal but having a one-on-one aide who would perform the same functions and not have, say, for instance, that same kind of distraction or perhaps subject other students to allergies and the like,” Negrón added.

OCR Investigation

By early 2010, the ACLU of Michigan got involved in negotiating with school officials on behalf of the Fry family, and the district agreed to a trial period for Wonder to come to school that lasted from mid-April until the end of Ehlena’s kindergarten year.

The Frys maintain that Ehlena was not allowed to fully use Wonder as a service dog during the trial period. The dog had to remain at the back of the classroom with a handler and was kept from helping Ehlena with tasks such as using the restroom or from accompanying her to recess or the library.

“That takes away from the working relationship,” Stacy Fry said.

At the end of that kindergarten year, the Napoleon district informed the Frys that Ehlena’s service dog would not be allowed to return the next fall.

Ehlena Fry, who has cerebral palsy, relied on her now-retired service dog, Wonder, to help with mobility and support earlier in her school career. Her family is challenging her former district’s refusal to allow her use of the dog.

“That’s kind of where we decided to go in a different direction for her education,” Brent Fry said.

The Frys home-schooled Ehlena for two years, using an online curriculum. In the meantime, they filed a complaint with the U.S. Department of Education’s office for civil rights, which investigated.

In May 2012, the OCR issued a determination letter that the school districts (both Napoleon and the Jackson intermediate district) violated the ADA and the Rehabilitation Act “by failing to modify their policies, practices, or procedures to permit the student’s service animal to accompany her to and assist her at school, thus denying and/or significantly limiting the student’s ability to access the district’s programs and activities with as much independence as possible.”

The two districts signed an agreement in which they pledged to allow Wonder into school to fully accompany and assist Ehlena throughout the school day. By that time, however, the Frys felt the Napoleon district was not the best place for their daughter.

That fall, Ehlena and Wonder were welcomed into the Manchester, Mich., district, 20 minutes to the east of Napoleon. Ehlena, along with her two older brothers, attended at first under a state school choice program before the Frys eventually moved into the district. (The Frys have five children from ages 3 to 16, three dogs including Wonder, two cats, and an assortment of other animals at their home.)

At Klager Elementary School in Manchester, Wonder was given his own “staff” ID card and featured in the school yearbook. Jennifer Mayes was principal of the elementary school when Ehlena was there, before both moved to Manchester Middle School last year, where Ehlena is now in 6th grade.

“Our district has had two different service animals in the past few years, both at the elementary and the middle school, and we just welcome our students and their service animals with open arms,” she said. “Having a service animal at school is really nonintrusive. It’s not a big deal at all.”

Another child at the middle school, who has Type 1 juvenile diabetes, relies on a service dog to alert him to high or low blood-sugar levels.

Wonder, who is now 9½ years old, “retired” just as Ehlena entered middle school last school year.

“He allowed her to find her voice,” Stacy Fry said of the dog. “Before, she often just waited to be told what to do. When she had control and was able to utilize him and she had to be the one in charge to tell him what to do based on what she needed, she developed her voice. That allowed her to socially develop as well as educationally develop.”

Back to School

Even though Ehlena is more independent now, Wonder remains a beloved family dog and a member of the Manchester school community.

On a recent fall day, Ehlena arrived a few minutes late to teacher Irene Barnard’s language arts class, moving steadily with her walker through the halls of Manchester Middle School. After the class worked in groups on a language arts lesson on their Chromebook laptops, Stacy Fry and the dog arrived for a prearranged visit.

“Look, it’s Wonder,” said one student. Many of the middle school students had attended Klager Elementary with Ehlena, and they greeted the dog like an old friend.

Ehlena confidently answered questions from other students about her dog.

“He opened doors. Turned on lights. He could hit the wheelchair button,” she said in response to a classmate’s question.

The students were happy to learn that, because Wonder was no longer wearing his service vest, they were free to pet him.

“Just not all at once,” said Barnard, the teacher. “Think about how you would feel if 30 6th graders came toward you to pet you.”

“The one place that Ehlena felt the need to be accepted the most [school], was the one place that denied her that,” Stacy Fry said in reference to her daughter’s elementary school in Napoleon. “We want to prevent that from happening to any other family.”

A version of this article appeared in the October 26, 2016 edition of Education Week as Service Dog Center Stage In Major Spec. Ed. Case


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