Alert - Supreme Court to Hear Oral Argument in Fry v. Napoleon Comm Sch. Dist. on Monday, October 31, 2016

When Ehlena Fry's case began in 2009, she was five years old. Because Ehlena has a severe form of cerebral palsy, her pediatrician prescribed a service dog to help her live as independently as possible. Her doctor and parents intended the service dog to accompany Ehlena everywhere so he could facilitate her independence.

In October 2009, Ehlena's parents acquired Wonder, a Goldendoodle that was specificaly trained to help Ehlena with balance, retrieve dropped items, open and close doors, turn on lights and perform many other tasks. Wonder is hypoallergenic and was trained to stay out of the way when he is not working.

Napoleon Comm. Sch. Dist and Jackson County Intermediate School District refused to allow Wonder to accompany Ehlena in school - even though the school allowed seeing eye dogs. So Ehlena had a trained service dog but had to attend school without the dog for most of the school year.

Civil Rights Complaint

In 2010, her parents filed a Complaint with the Office of Civil Rights (OCR), alleging that the district had violated the ADA and Section 504 by refusing to permit Ehlena to use her service dog at school.

OCR investigated and in 2012, held that the school district had violated the ADA and the Rehabilitation Act.

After the OCR investigation, the school allowed Wonder to accompany Ehlena for a short 'trial period' but did not allow the dog to work with Ehlena, as he was trained to do. Instead, the school ". . . required the dog to remain in the back of the room during classes, forbade the dog from assisting E.F. with many tasks he had been trained to do, and banned the dog from accompanying and assisting her during recess, lunch, computer lab, library time and other activities."

After the "trial period," the district refused to allow Wonder to accompany Ehlena at school for the upcoming school year. The parents placed Ehlena in a school in a nearby school district where Wonder was welcome and allowed to assist Ehlena.

After years of failed negotiations and disruptions in her education, Ehlena's parents withdrew their daughter from that school district and enrolled her in a different district. (Source: Petition for Certiorari and Brief for the United States as Amicus Curiae).

Parents File Suit under the ADA and Section 504

The parents also brought suit against Napoleon School District and Jackson Intermediate District, alleging that Ehlena had suffered harm as a result of discrimination, including “emotional distress and pain, embarrassment, mental anguish, inconvenience, and loss of enjoyment of life.”

The school district filed a motion to dismiss, claiming that the parents' "failure to exhaust their administrative remedies under IDEA mandated dismissal." The district court granted the district's motion to dismiss.

The Frys appealed to the Court of Appeals for the Sixth Circuit, arguing that the IDEA exhaustion provision did not apply because they were not seeking relief provided by IDEA procedures. In a 2-1 split decision, the court of appeals upheld the district court's dismissal. In a strong dissent, Judge Daughtrey wrote:

"The disability discrimination at issue is a text-book example of the harms that Section 504 and the ADA were designed to prevent, and the claims should not have been dismissed essentially because the victim of the discrimination was a school-aged child." Read decision.

In October 2015, the Frys appealed to the U. S. Supreme Court.

On May 20, 2015, the Solicitor General Filed a brief for the United States in the Fry case that expressed the views of the United States.

"In the view of the United States, the petition for a writ of certiorari should be granted." (emphasis added)

Legal Issue: Refusal to Allow Service Animals in School (Discrimination)

The Americans with Disabilities Act (ADA) and the Rehabilitation Act (Section 504) protect individuals with disabilities from discrimination. The ADA requires entities like public schools to modify their policies and practices to permit individuals with disabilities to use service animals. The ADA and the Rehabilitation Act allow individuals to bring suits for monetary damages. Many courts have held that monetary damages are not available under the IDEA. Since Ehlena was requesting monetary damages, her parents brought suit under the ADA and Section 504 of the Rehabilitation Act (504), not under The Individuals with Disabilities Education Act (IDEA).

According to the Solicitor General, "Because of the importance of service animals to ensuring equal access for many people with disabilities, the Department has interpreted the statute's 'reasonable modifications' language to require that . . . individuals with disabilities shall be permitted to be accompanied by their service animals in all areas . . . This rule applies to all state and government entities . . . Unlike the IDEA, the ADA also provides damages liability."

Legal Issue: Discrimination Cases Improperly Dismissed for "Failure to Exhaust Administrative Remedies" Under IDEA

In addition to the school's refusal to allow this child to use her service dog, Fry v. Napoleon is about whether parents and children with disabilities are required to exhaust their administrative remedies when the relief they seek (i.e. monetary damages) is not available under the IDEA.

Special education litigation usually begins with a due process hearing. After a decision is issued by a Hearing Officer or State Review Officer, the losing party can appeal to state or federal court.

But if parents has a dispute about their child's special education program or believe their child’s IEP is not appropriate, the parents cannot initially file a lawsuit to contest the IEP in federal or state court. First, they must request a special education due process hearing. After the due process hearing (and in some states, a state review hearing) is completed, the losing party can file a lawsuit in Federal Court. This requirement is known as "exhaustion of administrative remedies." This requirement consume an enormous amount of time and money, especially if the relief sought (monetary damages) isn't even available under the IDEA.

In 2015, cases brought under Section 504 /ADA were dismissed in the 3rd, 6th, 10th, and 11th Circuits because the parents did not exhaust their administrative remedies (request due process hearings) under the Individuals with Disabilities Education Act. One case was dismissed for failure to exhaust even though the child did not have an IEP. (p 22-25 in Wrightslaw: Special Education Legal Developments and Cases 2015(

This trend has continued in 2016 as federal courts continue to dismiss cases because parents did not request due process hearings (exhaust administrative remedies) before filing in Court.

Split Among Circuits

The Solicitor General reported that at least four circuits—including the First, Second, Seventh, and Eleventh—are likely to concur with the Sixth Circuit that exhaustion applies and requires dismissal of ADA and Section 504 claims. The Third and Tenth Circuits may concur. The Ninth Circuit held that IDEA's exhaustion requirement only applies to claims when the relief sought could be provided by the IDEA.(Payne v. Peninsula Sch. Dist., 653 F.3d 863, 874 (2011).

The Solicitor General requested that the Supreme Court decide this case because "resolution of this question is significant, especially for plaintiffs who attempt to vindicate the rights of children with disabilities. Children with with disabilities and their parents are being forced to needlessly pursue the IDEA administrative process — at considerable expense and inconvenience — when this process cannot provide them with the relief they seek.

The Supreme Court agreed to resolve these issues and the split among circuits. Oral argument is scheduled for Monday, October 31 2016.

Updates on the Fry v. Napoleon Case t

If you are interested in learning more about this case, please go to the Fry v. Napoleon Comm. Sch. Dist. page at https://www.wrightslaw.com/law/art/fry.napoleon.504.service.dog.htmThis page is updated often as new information is available.

To learn more about the legal issues - discrimination, exhaustion of administrative remedies, damages, and other current legal issues, see Wrightslaw: Special Education Legal Developments and Cases 2015.

View this Video About Ehlena and Her Wonder: The Americans with Disabilities Act from the Michigan ACLU: https://www.youtube.com/watch?v=PIfyHn2_lmE

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