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High Court hears case on barring service dog in class

Melissa Nann Burke
Detroit News Washington Bureau

Washington — The U.S. Supreme Court heard arguments Monday in a case over whether a Jackson County family may go directly to federal court to sue for damages after their daughter’s school barred her from using her service dog, Wonder the golden doodle, in kindergarten class.

The justices seemed sympathetic to the family’s arguments that they should not be required first to go through state administrative proceedings, since they are seeking damages for emotional distress unavailable under the Individuals with Disabilities Education Act – a federal law requiring that states make “free appropriate public education” available to all students with disabilities.

Justice Elena Kagan compared the case with one in which a public library refused to accommodate a student with a service dog, instead offering a librarian to help with the things a service dog would.

“Isn’t that suit exactly the suit that she brought, except that instead of a library it’s a school?” Kagan said. “That’s her claim and those are her damages – that she was deprived of access to a public facility in a way that caused her distress and emotional harm.”

Ehlena Fry was born with cerebral palsy, which limits her mobility. Wonder was trained to help her with everything from balancing in her walker to opening doors to helping her get on and off the toilet.

But the Napoleon Community Schools and Jackson County Intermediate School District refused to let her bring Wonder to school, arguing that she already had a human aide through her personalized education plan.

Ehlena’s parents, Stacy and Brent Fry, ultimately sued in federal court in 2012, seeking monetary damages and attorneys’ fees, among other relief. They had since transferred Ehlena to a school that accepted Wonder.

Lower courts agreed with the school, leading the Frys to appeal to the Supreme Court.

Michael Steinberg, legal director of the American Civil Liberties Union of Michigan, said the organization took the case to the high court so no other students will face the “humiliation and discrimination” that Ehlena faced in kindergarten.

“This case is about tearing down barriers to access to school for kids with disabilities, and it is not only illegal but it is cruel to make kids choose between their education and their access to an independent life,” Steinberg told reporters after Monday’s arguments.

Ehlena, now 12 and in sixth grade, was at the court Monday with Wonder, who is now retired as a working dog and living as a pet.

She said she was sad when her old school told her she couldn’t bring Wonder to class. “He was a great helper to me and my family,” she said. “He made me independent.”

The school district argues that the Frys were required to first make their case in administrative proceedings under the Individuals with Disabilities Education Act. Only after the Frys exhausted the administrative remedies could they file a civil lawsuit under the Americans with Disabilities Act or Rehabilitation Act.

The school district, with the support of the Michigan School Boards Association, said allowing a lawsuit like the Frys’ would cost public schools millions of dollars if all students were allowed to file lawsuits to challenge individualized education plans.

Representing the district, attorney Neal K. Katyal told the justices the Frys “walked out” of the administrative process before it was over.

“You can’t just say, ‘Oh, I met with some administrators and they didn’t like the dog.’ You’ve got to go through the complicated process that IDEA says,” Kaytal argued.

The Fry family says the type of relief that they seek – monetary damages for the school’s refusal to accommodate Wonder – is not available under IDEA, so the administrative proceedings would have been futile. IDEA officers are unable to award damages.

“Our allegations are about emotional distress. They are not about out-of-pocket costs or anything compensable under the IDEA,” said Samuel Bagenstos, a professor at the University of Michigan Law School who argued on behalf of the Frys.

Chief Justice John Roberts seemed to disagree with Kaytal that the family was trying to evade the administrative process.

“The cooperative process you’re talking about, given their position that they are not asking for any relief under (IDEA), would be kind of a charade,” Roberts said. “You get into the meeting room, and they say, ‘well, we don’t want anything that you can give us. We want money and that’s not available.’”

Kaytal countered that part of the relief that the Frys are seeking through the courts is a declaration that the school erred by excluding Wonder, and that is a remedy provided by the administrative proceedings.

“It’s really awkward, Mr. Chief Justice, but I think what Congress said there is it’s not up to the individual parents subjectively to say, hey, I don’t want any part of this process,” Kaytal said.

Jim Graham, superintendent of Napoleon Community Schools, referred a request for comment to Katyal, who declined.

A decision in the case is expected by June.

mburke@detroitnews.com

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