The Dawg takes a particular interest in any litigation involving his fellow canines. Thus we have been closely monitoring the Supreme Court (SCOTUS) awaiting a decision about WONDER the Service Dog. We’ve got the decision now. But it doesn’t tell us much about Wonder, or the school’s obligation to accommodate a request for a service animal.
Instead, the decision is all about “exhaustion of administrative remedies.” Thus you can file this one under BORING, BUT IMPORTANT.
The Court ruled that the parent of a student with a disability can file a lawsuit without first seeking a special education due process hearing if the “gravamen” of the suit is something other than the denial of FAPE (Free Appropriate Public Education). “Gravamen” is a great word to work into your daily vocabulary.
This case arose when the parents asked the school to allow Wonder to come to school with the little girl. The school turned down the request, largely because the school was already providing a one-to-one aide. Who needs a dog when you have a person?
That would have been a winning argument if this case was about whether or not the school was providing FAPE. But the case was not about FAPE--it was about discrimination under Section 504 and the ADA. Thus the Court came to its ultimate conclusion: that if the case is not about FAPE, but is instead, about alleged discrimination, then you don’t have to “exhaust” those administrative procedures.
So how do you tell what the case is really about? This is where the word “gravamen” comes into play. The Court described it this way: “What matters is the crux—or in legal-speak, the gravamen—of the plaintiff’s complaint, setting aside any attempts at artful pleading.”
Justice Kagan wrote the Court’s opinion and offered four ways in which lower courts can discern the “crux” of the suit. First, what does the lawsuit itself say? Here, the Court pointed out, the key is not labels, but substance. Exhaustion is required “when the gravamen of the complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way.”
Second: could the plaintiff bring the same complaint if the setting for the complaint had been some public facility other than a school? Here, the complaint was about the denial of a service dog in the public school. Could the plaintiff have filed suit if the city library had denied entry to the service dog? If so, it sounds like the “gravamen” is not about FAPE.
Third, could an adult file the same complaint? If Grandma was not allowed to bring her service dog to the high school graduation, could she file suit under ADA/504? If so, it sounds like this is not really about FAPE.
Finally, what’s the history of the proceedings? Did the parents begin the process of exhaustion and then abandon it? If they requested a special education due process hearing, it is more likely that the “gravamen” is about FAPE.
The Court did not decide whether the Frys have to exhaust their remedies or not. There were some unanswered questions in the record, and so the Court sent it back to the 6th Circuit for further consideration. But it sure looks like exhaustion will not be required. The “gravamen” of this complaint is equal access—discrimination—not the denial of FAPE.
This is an important decision, as are all decisions by the U.S. Supreme Court. However, it is not one that will have an immediate impact on the day-to-day operation of your school district. “Exhaustion of administrative remedies” is of more concern to the lawyers than the educators. If suit is filed, it will be up to your lawyer to determine whether or not it is wise to seek dismissal based on the failure to exhaust. Justice Kagan’s opinion will guide that decision.
But before we leave this case, let’s consider one more aspect of it. What about Wonder? The case has now been through all three levels of our federal judicial system and the core issue has yet to be addressed—did the school discriminate against the family by denying access to the service dog? All three judicial opinions address only the procedural issue of “exhaustion of administrative remedies.”
However, the implication of the ultimate (SCOTUS) decision is clear. Claiming that a service animal should be allowed at school involves more than a FAPE analysis. It also involves consideration of whether or not a denial of that claim would open the door to a federal suit under ADA/504. So ask yourself two questions: Is it required for FAPE? If so, write it into the IEP. If not, ask yourself the second question: Is it required as an element of equal access? If so, then permit it as a reasonable accommodation.
The case of Fry v. Napoleon Community Schools was decided by the U.S. Supreme Court on February 22, 2017. The judgment was rendered unanimously, with six justices signing off on Justice Kagan’s opinion, and two (Alito and Thomas) adding a concurring opinion addressing one part of Kagan’s opinion.
DAWG BONE: THE DAWG IS SECRETLY SUPPORTIVE OF WONDER
File this one under: PRACTICE AND PROCEDURE
Tomorrow: T.E.A. is not the place to go with a complaint about an individual.