Service Dog Gets Second Chance to Go to School

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By Kimberly Strawbridge Robinson and Melissa Heelan Stanzione

Quicker relief for disabled students from certain federal law violations may be possible after a unanimous U.S. Supreme Court decision Feb. 22 ( Fry v. Napoleon Cmty. Sch. , 2017 BL 54114,, U.S., No. 15-497, 2/22/17 ).

Ehlena Fry sued her school under the Americans With Disabilities Act after the school refused to allow her service dog, Wonder the Goldendoodle, into her Kindergarten class.

The high court narrowed the kinds of claims that must first go through a lengthy administrative process at the school before going to federal court.

Under the Individuals With Disabilities Act, students with disabilities are entitled to a free appropriate public education. If they challenge a school’s provision of a FAPE, they must exhaust their administrative remedies before suing for relief in federal court.

However, there are a host of claims that don’t fit into that category and Justice Elena Kagan’s opinion for the court provided great detail to help distinguish between the two, Samuel Bagenstos told Bloomberg BNA.

The decision will make “a huge difference in enabling kids with disabilities who have Americans With Disabilities Act claims that aren’t about FAPE” to enforce them without “unnecessary hurdles” being placed in their way, he said.

Bagenstos, a civil rights professor at the University of Michigan Law School, represented Fry, who suffers from cerebral palsy.

Where to File?

Lower courts have “vastly expanded” the requirement of exhaustion under the IDEA to cover “a whole universe of claims” that have nothing to do with a FAPE but just happen to arise in a school setting, Bagenstos said.

Cases such as this one that involve service dog access to schools and those alleging sexual abuse by teachers will no longer have to go through the IDEA process before filing for relief in court, he said.

It’s hard, however, for parents to make the determination at the “get-go” what kind of case they have and where they should file their claims, a school law specialist told Bloomberg BNA.

To the extent that the decision “encourages parents to bring issues that should be educational ones directly into court,” it’s a disservice to schools and students, Naomi Gittins said.

Gittins is managing director for legal advocacy at the National School Boards Association, which filed an amicus brief in support of the school district.

If there’s a problem, the initial approach should be to talk with the school, she said.

Three Factor Test

To determine whether a complaint truly implicates the denial of a FAPE, the Supreme Court provided three factors for courts to examine:

  •  whether the claim could have been brought in a public facility not a school;
  •  whether an adult at the school could have brought the same claims; and
  •  what the history of the proceedings reveals about the gravamen.
The first two factors are the most important, Bagenstos said. They show that the school setting isn’t determinative, he said.

“One of the points we made throughout the case is that Fry had the same claim against the school that she could have against a public library or park” had she been denied the change to be accompanied by Wonder, Bagenstos said.

Although it’s commendable that the court is trying to give guidance on this difficult question, the factors don’t necessarily help and could lead to more confusion, Gittins said.

“I agree with Justice Alito,” she said.

The “clues” for the lower courts to follow “are likely to confuse and lead courts astray,” Justice Samuel A. Alito Jr. said in his concurrence, joined by Justice Clarence Thomas.

The case now goes back to the Sixth Circuit for an analysis of the gravamen, or essence, of Fry’s complaint.

The directions for the court below “are ones we’re very confident we’ll prevail” on because they’re very detailed about the distinction between what it means to be a case seeking a challenge to a denial of FAPE and other cases, Bagenstos said.

Requests for comments from respondents weren’t returned.

Samuel R. Bagenstos of the American Civil Liberties Union Fund of Michigan, Ann Arbor, Mich.; Steven R. Shapiro of the American Civil Liberties Union Foundation, New York; Jill M. Wheaton and James F. Hermon, both of Dykema Gossett PLLC, Ann Arbor, Mich.; Michael J. Steinberg of the American Civil Liberties Union Fund of Michigan, Detroit; and Susan P. Mizner and Claudia Center, both of the American Civil Liberties Union Foundation, San Francisco, represented Fry.

Neal Kumar Katyal, Eugene A. Sokoloff and Mitchell P. Reich, all of Hogan Lovells US LLP, Washington; Thomas P. Schmidt of Hogan Lovells US LLP, New York; and Timothy J. Mullins and Kenneth B. Chapie, both of Giarmarco Mullins & Horton PC, Troy, Mich., represented the respondents.

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at; Melissa Heelan Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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