Wonder goes to Court

October 31, 2016 5:15 AM

This morning, the Supreme Court will hear oral argument in Fry v. Napoleon County Schools; Ehlena Fry, a then five year old girl with cerebral palsy, was told by her school that her service dog, Wonder, could not accompany her, since the district was already paying for an aide to help. Ehlena and Wonder's case was brought by the ACLU and the ACLU of Michigan. (video)
posted by roomthreeseventeen (34 comments total)

So the Frys home-schooled Ehlena and then transferred her to another school district where Wonder was welcomed with open arms. He went to class with Ehlena and to lunch. He was in the staff section of the yearbook. He had his own ID card. He was in the class picture. And, says Ehlena's mother, the relationship between dog and kid was integrated into the school seamlessly.

"It was amazing and they were so accepting," Fry observes. "It was such a teaching tool, for the other kids."

Now, that's how you run a school. Please take note, un-identified, backward-thinking school.
posted by Thorzdad at 5:38 AM on October 31, 2016 [46 favorites]

Wonder and Ehlena are adorable together, and the Sixth Circuit's reference to Ehlena's "human aide" is charming, but this is also a weirdly technical case to be making the news at all. Essentially, the lower court ruled that, even though her parents are asking for relief under two federal statutes, the Rehabilitation Act and the ADA, other than the Individuals with Disability Education Act (IDEA) that the IDEA's requirement that parties "exhaust" their administrative remedies* prior to bringing suit in federal court applies. The IDEA plainly states that parties will be required to exhaust under the IDEA in some cases under the ADA or Rehabilitation Act (where the relief is also available under the IDEA). I believe most circuits apply the same rule the Sixth did here, but I might be mistaken; this isn't an issue that's come up in my practice.

*Administrative remedies in this case meaning filing what's called a due process complaint with the state educational agency which results in an adversarial, but informal, hearing and a resulting decision you can then ask a court to review.
posted by Bulgaroktonos at 5:47 AM on October 31, 2016 [10 favorites]

I love the idea of a child having a service dog at school. It sounds like it worked out well at the second school and I think that's great. But I'm not sure the first school was acting unreasonably. What about allergies? Perhaps that could be addressed sufficiently by making sure no children or adults with dog allergies were assigned to Ehlena's class but even so it would make figuring out classroom assignments that much more complicated. (And how much separation would be required in the cafeteria between allergic kids and the dog?) And then there's the issue of having a large dog under the supervision of no one but a 5 year old child and some adults who might or might not have any knowledge of dog training or behavior in a building full of very young kids who might not know how to act appropriately around a dog. Sure, the dog had been trained and it seems very likely that it would handle the situation well most of the time, but would it really be responsible of school administrators to just say, "Sure, send the dog to school and let's see what happens?"
posted by Redstart at 6:00 AM on October 31, 2016 [12 favorites]

What about allergies?

Or phobias. I think as good as a service animal can be, things have to coordinated and thought out ahead of time. Sometimes it is an easy yes. Sometimes things have to be modified and tweaked. But there are times when the answer is no.
posted by Alexandra Kitty at 6:28 AM on October 31, 2016 [4 favorites]

What about allergies?

The second link notes that the dog is hypoallergenic. (I'm more sympathetic to the phobia angle, though that still seems like an easier issue to work around.)
posted by Shmuel510 at 6:31 AM on October 31, 2016 [2 favorites]

I generally dislike dogs myself, but given the choice of "work to find a way to let her have her service animal" or "work to find every possible objection to her having a service animal," the former seems so obviously the better choice.

(And the bit about "Ehlena and Wonder were even required to demonstrate a toilet transfer with adults from the school watching" is horrifying.)
posted by Shmuel510 at 6:36 AM on October 31, 2016 [16 favorites]

Or phobias.

Sounds like a good opportunity to help those with phobias AND enable a kid with difficulties become more independent. WIN WIN, with some work.
posted by Brandon Blatcher at 6:37 AM on October 31, 2016 [2 favorites]

There is no real evidence that hypoallergenic dog breeds are more allergy friendly than other breeds.
posted by CarolynG at 6:38 AM on October 31, 2016 [16 favorites]

Yeah, hypoallergenic dogs aren't really a thing. Dogs that don't shed are a thing, but people are allergic to dog saliva as well as dog dander and hair.
posted by soren_lorensen at 6:44 AM on October 31, 2016 [9 favorites]

The case is not about whether the student can bring the service dog to school--it's about whether the family could bypass administrative procedures and jump directly to a federal lawsuit.

Whether the dog is hypo-allergenic, or the best aide for the child, or the most reasonable accommodation is not at issue. Discrimination claims are not part of the case, except in that the family was seeking relief under the ADA and the Handicapped Child's Protection Act. The question is not about the dog or the school's behavior, however, but the family's choice of court.
posted by crush-onastick at 6:48 AM on October 31, 2016 [13 favorites]

As, you know, noted above.
posted by crush-onastick at 6:49 AM on October 31, 2016 [2 favorites]

Ehlena's mother says the suit is not about money, but is meant to forge a path for other children with service animals

But the school district, backed by the National School Boards Association, argues that to allow such suits could cost school districts millions of dollars.

Well, it should be at least partially about money if they ended up having to send her out of District. Somebody's got to pay for that. Usually if the local school can't or won't accommodate a student’s disability, it's they who pay the out-of-district tuition to another school that can. But if the local school in this case is claiming that the student didn't really need this accommodation in the first place, they may have been refusing to cough up, forcing the parents to pay out-of-pocket.

There was a boy in the town where I went to high school who was one year ahead of me, but we never met. He was confined to a wheelchair and the 7-12 section of our school building wasn't wheelchair accessible. Our school paid for a wheelchair van to pick him up every morning and drive him across the county to the nearest wheelchair-accessible school.

(Allergies and phobias were discussed in the articles.)
posted by The Underpants Monster at 7:17 AM on October 31, 2016 [2 favorites]

Well, it should be at least partially about money if they ended up having to send her out of District. Somebody's got to pay for that.

The student no longer attends the school district in question; the only damages she's seeking are for the part harm of excluding Wonder from the school. They're not seeking to force the district to pay for future attendance at a school out of district (They homeschooled Elena when the school refused to allow Wonder).
posted by Bulgaroktonos at 7:37 AM on October 31, 2016

I find it amazing that the other school had zero people with dog allergies and zero people with crippling, dog phobias.

Funny that.
posted by RolandOfEld at 8:06 AM on October 31, 2016 [7 favorites]

I shouldn't risk being witty at the cost of being unclear:

I think it's very likely the second school did a damn sight better job than the first one.

I'm not a Supreme Court justice so I don't have to think about it much more than that, thank heavens.
posted by RolandOfEld at 8:07 AM on October 31, 2016 [2 favorites]

Yes this is definitely a why are people horrible situation.
posted by bq at 8:42 AM on October 31, 2016

The issue before the Supreme Court is actually a really important and material one. It is a question of can suits go directly to federal court or do the parents (or plaintiffs) have to exhaust the administrative appeals before going to federal court.

Going through (and losing) at the administrative level can be very costly to a plaintiff. (If the plaintiff wins, generally legal costs are awarded to the plaintiff). This decision can materially affect the cost allocations to both parties and would likely create more suits because the barrier to entry has been lowered.

School districts are funded locally by taxpayers. This decision may have a non trivial affect on local taxes over time.

Having said that, I have no idea why the first district, presumably her home district, didn't give this a more unbiased attempt. The dog itself is a theoretically non allergic (forget the technical term) dog. As for a child with a dog phobia, maybe the schools should be spending money to help that child address the phobia independent of whether there is a service dog in the school or not. What if the service dog was needed for a blind student? The district would have had to come up with a way to address the student(s) with a phobia and the need for a service dog.
posted by AugustWest at 9:03 AM on October 31, 2016 [5 favorites]

Ehh, "non-allergenic" still causes my mom some problems after a few hours of being in the same room. I'm not sure how common that is, but it is possible that the school would have to keep the allergic staff/students in separate areas. That seems like a reasonable accommodation to me, although Napoleon is a small school district, so maybe there were space limitations that would make that almost impossible.

That said, the school's behavior in general seems like they were just trying to be jerks. Some of the limitations on the "trial" with the dog don't seem like they'd do anything to mitigate allergen exposure but would negatively impact Ehlena's independence. I could see why, as sucky as it is, you'd keep the dog out of shared areas like the lunchroom or computer area to minimize allergen exposure. But making the dog sit at the back of the classroom really won't help someone with severe allergies, so that seems arbitrary and pointless. And I have no clue what the toilet transfer demonstration was supposed to do.

So it leads me to wonder if they were just trying to be jerks in order to turn the family off the school district so they'd take on the costs of educating her at home or transferring to another school district.
posted by ghost phoneme at 9:30 AM on October 31, 2016

Ehlena Fry, a then five year old girl with cerebral palsy, was told by her school that her service dog, Wonder, could not accompany her, since the district was already paying for an aide to help.

If I understand the parents' position, it was the Wonder helped make Ehlena more independent. That is because she was able to do things with the dog that she wasn't able to do alone. (Like make the transition onto the toilet.) The school district apparently said that the aide could provide that kind of help, and apparently the family thought that Ehlena doing things with human assistance was indicative of dependence, while doing them with animal assistance was indicative of independence.

There's some intuitive sense that the parents have a point; there was a comparison to a blind person using a dog to get around (independent) vs being led around by a person (dependent). Looking at it another way, there's a dependency in both situations, but relying on an animal instead of a human is identified as another order of experience.

It may just be that this is just a semantic issue, but it seems to me that there is something involved that has gets to the special relationship between humans and dogs, and it's striking that it's become the center of this dispute.
posted by layceepee at 10:20 AM on October 31, 2016 [10 favorites]

Small Correction: The Napoleon Community School District is located in Jackson County.
posted by HuronBob at 10:47 AM on October 31, 2016

"And the bit about "Ehlena and Wonder were even required to demonstrate a toilet transfer with adults from the school watching" is horrifying."

That would have been done with the student fully clothed.

Still embarrassing, but it was part of trying to prove the need for the service dog.
posted by ITravelMontana at 11:11 AM on October 31, 2016 [2 favorites]

All day long I have been wondering if we would be having the same conversation about shitty school districts, allergies and phobias if this child was legally blind and Wonder was a Guide dog.
posted by DarlingBri at 11:34 AM on October 31, 2016 [7 favorites]

apparently the family thought that Ehlena doing things with human assistance was indicative of dependence, while doing them with animal assistance was indicative of independence

I can totally see this from the family's perspective. A human aide has many drawbacks in a situation where a child is the person needing assistance and the assistance is entirely physical-- helping the person move, pressing elevator buttons, etc. Aides have physical needs like getting sick or needing to use the bathroom themselves unexpectedly; they are often assigned to multiple students in the same class. Aides are required to be provided breaks. Because aides are human, they have the ability to choose to not provide acceptable care-- there are documented cases where school aides have mistreated or ignored kids in their care, with verbal or physical abuse.

A service dog has physical needs but you can build these into a daily routine, and they don't get legally-protected breaks, and they are selected for a temperament where they WANT to perform these tasks when asked.

So suddenly this isn't "Ehlena needs to pee and has to find the aide in the room, or wait for the aide to return. Once they are physically there, she has to stop them working with other kids, and convince them to help her, and possibly endure being made fun of/being admonished for having gone just last hour. Finally, she gets to use the toilet," it's "Ehlena needs to pee so she makes the hand signal and Wonder takes her to the bathroom." I can clearly see that both situations are dependent on other actors, but at different levels and in different ways.

The real frustrating thing in a situation like this is that you only get one shot at your kid growing up. Having to wait years for local legal battles conveniently also ensures that the kids whose rights are being violated don't get any benefit from these decisions. I am proud of this family for taking this fight up to a federal level, so that future kids will get the accommodations they need to be as independent as they can.
posted by holyrood at 11:43 AM on October 31, 2016 [8 favorites]

To me, the biggest concern isn't allergies or phobias, but the question of who would be responsible for the dog. Whose job would it be to ensure that the dog stayed under control and didn't cause problems? If something unexpected happened and the dog got scared, distracted or confused, whose job would it be to figure out how to deal with that and help the dog focus on his work again? A 5 year old clearly isn't capable of taking on that kind of responsibility. (A child in elementary school would not normally have a guide dog.) Would it become the responsibility of some adult who wasn't originally hired to work with dogs and might not have any relevant training or experience?

It would be interesting to know how the second school dealt with that. I wonder if they found solutions that would work in any school or if Wonder's success there depended on specific enthusiastic and capable adults.

I expect the school was also concerned about the fact that this would be a new situation for Wonder and Ehlena and that it might be hard to predict how Wonder would react to some of the new experiences. What if a little kid whacked him with a ruler? What if a kid whacked Ehlena? It appears that nothing went seriously wrong at the second school, but that doesn't prove that it was unreasonable for the first school to consider some of the things that could go wrong.
posted by Redstart at 11:58 AM on October 31, 2016 [1 favorite]

The student no longer attends the school district in question; the only damages she's seeking are for the part harm of excluding Wonder from the school. They're not seeking to force the district to pay for future attendance at a school out of district (They homeschooled Elena when the school refused to allow Wonder).

From TFA:
"So the Frys home-schooled Ehlena and then transferred her to another school district where Wonder was welcomed with open arms."

The homeschooling was temporary, only until they found another district willing to take Elena *and* Wonder. They would have had to pay for that, and they deserve to be reimbursed. The damages from this lawsuit can, in a sense, be viewed as that reimbursement.
posted by The Underpants Monster at 11:58 AM on October 31, 2016 [1 favorite]

There's some intuitive sense that the parents have a point; there was a comparison to a blind person using a dog to get around (independent) vs being led around by a person (dependent). Looking at it another way, there's a dependency in both situations, but relying on an animal instead of a human is identified as another order of experience.

My wife's father works at a very large and well reputed school for the blind. From what I've learned from him as I talked about his [very interesting] work with students that function across the ranges of the capabilities spectrum: I think it is almost certainly insulting to people that utilize service animals to suggest that they rely on another human instead of their chosen and preferred solution, where possible. Not least of all because it's removing their agency to decide how a given situation is best handled for them.

All day long I have been wondering if we would be having the same conversation about shitty school districts, allergies and phobias if this child was legally blind and Wonder was a Guide dog.

I wonder the same thing. It's shitty to say it but I have heard, first hand from NPS rangers, of people getting their pets 'certified' as therapy* or comfort* dogs for the sole purpose of violating animal rules in National Parks. So, yes, there is a spectrum of need with those, by and large, assholes on one end and people with serious and, perhaps more importantly, obvious to the casual observer needs that have animals like seeing eye dogs. This situation seems to be well enough to the 'serious need' side of things that I don't have a moment's hesitation in giving her, as if she needed it in the first place, the benefit of the doubt.

To me, the biggest concern isn't allergies or phobias, but the question of who would be responsible for the dog. Whose job would it be to ensure that the dog stayed under control and didn't cause problems? If something unexpected happened and the dog got scared, distracted or confused, whose job would it be to figure out how to deal with that and help the dog focus on his work again? A 5 year old clearly isn't capable of taking on that kind of responsibility.

I mean, service animals are highly trained for those very reasons. I wouldn't mind learning more about how people in this situation are handling this but it says something that another school was able to accommodate her, her dog, and her parent's needs to an acceptable level. There's only so much anyone can do to prevent problems or conflicts that may or may not come up but I feel like placing the burden of proof that nothing bad can/will ever happen upon the family in question, above and beyond that of owning/training/certifying the dog in question and working with the administrators (within reason), is flawed on the surface and is obviously problematic.

*As I understand it: Therapy/Comfort Dog != Service Dog in regards to training or certification requirements. I am not an expert.
posted by RolandOfEld at 12:25 PM on October 31, 2016 [3 favorites]

For over 7 years I have had the name "Wonder" and many of my friends know me only by that name, particularly in Occupy, festival and intentional community circles. Great name for a dog too! For me it expresses my curious, meditative and amazed nature, rather than a brag about my awesomeness. :-)
posted by TreeHugger at 12:58 PM on October 31, 2016

All day long I have been wondering if we would be having the same conversation about shitty school districts, allergies and phobias if this child was legally blind and Wonder was a Guide dog.

I'm not sure if you mean the school district would have been more accommodating (maybe?), or if you mean anyone talking about allergies.

If it's the latter, I apologize if my remarks seemed dismissive of non-Leader service dogs, I definitely do believe they are just as necessary. I do know people who experience breathing problems when around dogs for any significant length of time. So if the first district was being truthful about having to manage allergies and a service dog (leader dog or otherwise), I could see that being tricky to manage in a limited space.

But if they made genuineine effort and failed (of which I'm skeptical, as their rules for the trial didn't seem to address allergy concerns), they still should have taken steps to help the Fry family find a district that could accommodate the service dog rather than saying the dog was unnecessary.

So regardless, the school district was crappy, and service dogs are necessary for many reasons beyond just leader dogs.

To me, the biggest concern isn't allergies or phobias, but the question of who would be responsible for the dog.

Service dogs are very well trained. And even if they wanted someone to be more responsible for the dog, that seems like a wash: the school district maintained she didn't need the dog because she had a full-time aide, so if it was important to have the dog monitored, why not provide training to that aide?

Maybe it's an extra cost, but it's still feasible accommodation.
posted by ghost phoneme at 1:32 PM on October 31, 2016 [1 favorite]

But the school district, backed by the National School Boards Association, argues that to allow such suits could cost school districts millions of dollars.

Welp, maybe if you stopped fighting them and worked out accommodations that worked for both parties, you wouldn't have to spend millions of dollars on these cases. These parents aren't looking for money, they are looking to educate their children with dignity.
posted by MiltonRandKalman at 2:56 PM on October 31, 2016 [8 favorites]

I wonder the same thing. It's shitty to say it but I have heard, first hand from NPS rangers, of people getting their pets 'certified' as therapy* or comfort* dogs for the sole purpose of violating animal rules in National Parks.

So, in defense of maybe some of those people, we've thought about both getting a medium to large dog in large part (the size of the dog part) because my partner is quite physically small and feels very uncomfortable while hiking alone, to the point where she often doesn't feel able. When she goes hiking with a dog, she feels much more comfortable and safe. I can imagine that if we lived near national parks and could hike them enough that not being able to bring a dog in otherwise would make us do that.

Unless the person doing the violating actually said, "I have no legitimate reason for this comfort animal and simply wish to bring it into the park against regulations." I'd avoid buying that they didn't have a reason for a comfort animal. Most reasons people have them are largely invisible.
posted by neonrev at 7:10 PM on October 31, 2016 [2 favorites]

I'm a volunteer puppy raiser for Leader Dogs for the Blind so I'm pretty familiar with the law in Michigan regarding Service Animals. It is against the law to refuse access to a Service Animal on the grounds of "allergies." The school has to make accommodations for both parties.
Service Animals from a facility like the one this family used are incredibly well trained, so I don't see any problem with a 5 year old handling the dog. Just as an example, since they are the ones I work with, our puppies are trained to relieve themselves only on command as soon as we start house training. We work on "settle" and "under" every day. I picked up my last puppy when he was 7 weeks old and returned him last week on his 13 month birthday. He now will have 5 months of 7 day a week, 6 hours a day one on one training with his professional trainer at Leader Dog.
A Service Animal is a tool, just like a wheelchair or a pair of glasses, and I hope the school district loses this case.
posted by notaninja at 7:24 PM on October 31, 2016 [8 favorites]

And because I'm a proud puppy raiser, Dixon .
posted by notaninja at 7:40 PM on October 31, 2016 [5 favorites]

There is obviously a huge amount of emotion around things like this, and I'm actually not taking a position on this case because I don't really have enough information (there's a reason cases like this make it to SCOTUS, 'cause they're hard stuff to figure out!).

This has less to do with allergies than it has to do with FAPE - the right for disabled students to have "Free and appropriate public education", which is guaranteed by IDEA and its predecessors, but especially the term "appropriate" is not well defined. The key precedent for that definition is Rowley, which held that a school does not have to provide everything that would be the absolute best possible situation for a child as long as it provides a situation that results in positive educational outcomes, in (another key term), a "least restrictive environment". Agree or disagree as you like (not sure that I do), but that is the precedent.
posted by transient at 7:42 PM on October 31, 2016

I have a coworker that is vision impaired (but pretty crafty at how she gets around). She has a service dog too, named Flash.

I have ONE problem with her dog.

Unfortunately, I have an impairment too - Complete inability to avoid earworms. So, every time I go in her office and see the introductory sign on the wall, I spend the rest of my day with Queen singing in my head.

I mean, seriously, it was funny the first couple of times, but after months it is getting REALLY old.

(Ask me why I regretted living in a house on Belmont street!)
posted by Samizdata at 1:25 AM on November 1, 2016 [1 favorite]