Two recent cases involving school systems that refused to allow children to attend classes with service dogs produced different results, one court ordering the dog admitted and one court requiring that the parents continue to pursue remedies in an administrative setting before the case would be deemed ripe for a federal trial. The first case, in California, drew a Statement of Interest—effectively an amicus brief—from the Department of Justice. That Statement was cited in the second case, in North Carolina.
The cases have elements other than the law that distinguish them and which might arguably justify different results, but as more cases of this sort reach higher courts, the broader questions may become appropriate for Supreme Court review.
California School District Ordered to Admit Autism Service Dog
In C.C. v. Cypress School District, Case No. 8:11CV352-AG (C.D. Cal. June 2011), a federal district court in California granted a preliminary injunction requiring the Cypress School District to accommodate the use of a service dog by a six-year-old boy diagnosed with autism. The boy was nonverbal, had a low cognitive level, and had great difficulty interacting with others. His autism was regarded as severe. When he became anxious, he would often shriek, pace, plug his hears, laugh inappropriately, and flap his arms. He had begun pinching and scratching people, and started to wet himself at school.
The court maintained the child’s anonymity but press reports have shown him with Eddy, a golden retriever.
In May 2010, C.C. was paired with Eddy, a service dog from Autism Service Dogs of America (ASDA). Eddy had been trained for nearly two years, beginning when he was eight weeks old, and had developed skills specifically relating to C.C., such as interrupting impulsive and destructive behavior, preventing C.C. from running away or wandering off (sometimes called “elopement”). C.C.’s condition was described in testimony of Dr. Stephen M. Shore.
C.C.’s mother requested that the Cypress School District allow C.C. to use Eddy at school, but the District refused the request. Fearing the connection with Eddy might be lost, the parents kept C.C. at home during the last two weeks of the 2009-10 school year, but in the 2010-11 school year C.C. went without Eddy.
C.C. was in a classroom of ten students, all with autism, each of whom had individualized educational goals as required by the Individuals with Disabilities Education Act (IDEA). There were five adult educators in the room, four of whom were Applied Behavioral Analysis-trained aides.
The mother, on behalf of C.C., sued under the ADA, the Rehabilitation Act, the California Unruh Civil Rights Act, violations under various California statutes, and negligence, and moved for a preliminary injunction requiring the school to accommodate C.C.’s request. The federal district court concluded that a preliminary injunction was warranted because of possible irreparable harm in the absence of preliminary relief, the balance of equities, and the public interest.
To determine if the Cypress School District failed to make a reasonable accommodation, the court considered whether Eddy was in fact a service dog, and whether the school’s educational program would be fundamentally altered if Eddy accompanied the child to school. The court reviewed the federal regulations on service dogs, 28 CFR 35.104, and noted that the issue was whether Eddy’s work or tasks were directly related to C.C.’s disability.
The School District argued that Eddy was primarily present to comfort C.C. and that this was not enough to make Eddy a service dog. While there was no doubt that Eddy calmed C.C., the court determined that although this function alone might not qualify Eddy as a service dog, “it certainly does not foreclose the possibility.” Eddy prevented C.C. from elopement and helped prevent him from shrieking and throwing tantrums, both of which, according to the court, qualify as “preventing or interrupting impulsive or destructive behaviors,” under 28 CFR 35.104.
The School District argued that allowing the dog in the classroom would fundamentally alter the nature of the school’s program, but the court found “scant evidence” for this. The school noted that aides in the school would have to learn the commands that Eddy was trained to obey, hold the dog’s leash when navigating the campus, provide Eddy with water, and tether and untether him throughout the day. The court conceded that these requirements might impose some additional expenses on the school but concluded that the School District had “not currently shown that such changes are so drastic that the accommodation request would be unreasonable.”
The court also noted that (1) Eddy did not need to be given water during the school day, (2) was trained not to relieve himself while in school, (3) would only need his leash held when moving from one part of the school to another, and (4) generally required only two commands during the day—“Down Stay” and “Eddy, Okay.” The School District argued that it might be forced to hire additional staff, but the court noted that plaintiff had provided “evidence that no school in which an ASDA dog has been placed has ever had to hire such additional staff.” Presumably the dog was trained to poop and pee on command in the morning before going to the school, so a half-day or slightly longer program would not have required his being taken outside to relieve himself.
The School District argued that having Eddy in the school would impede C.C.’s educational process and independence. The court cited Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947 (E.D. Cal. 1990), which held that whether a service dog enhanced a student’s educational opportunities was irrelevant under the Rehabilitation Act. (Sullivan concerned a student with cerebral palsy, learning disabilities, and right-side deafness.) The court noted that issue of fundamental alteration concerned whether the school would be forced to alter its educational program for the other students with autism. The school argued that it would have to teach the remaining students to ignore the dog and referred to possible canine aggression, but the court described this “fleeting discussion of the impact on other children” insufficient to show that admitting the dog would produce a fundamental change to the school’s program.
The federal court described the School District as appearing to argue that “because Plaintiff is making substantial progress in the program, Plaintiff will not suffer any irreparable harm even if he continues in this program without a service dog,” but the court found this argument unpersuasive. The court noted that C.C.’s “key argument concerning irreparable harm” concerned the bond the child was forming with the dog, which if broken could destroy the potential benefits of the service-dog relationship. As will be discussed below in a case arising in North Carolina, another federal court was less impressed with this argument than the California federal court here.
Nevertheless, the court imposed a $50,000 bond on C.C. before the preliminary injunction became effective. The plaintiff had argued that no bond should be required, and the School District did not address the issue, but the court concluded that there could be costs associated with allowing Eddy into the school. This financial requirement is unfortunate as it would preclude many families from obtaining the relief granted under the principles enunciated in the case.
Department of Justice Files Statement. The Department of Justice filed a Statement of Interest because the suit “implicates the proper interpretation and application of the ADA, Section 504, and related statutory provisions, regulations, and technical assistance materials it has issued, including its regulation defining the term ‘service animal,’ 28 C.F.R. § 35.104, and requiring public entities, including schools, to make reasonable modifications in rules, policies, and practices that are necessary to avoid discrimination, including reasonable modifications to permit the use of service animals by individuals with disabilities.”
The DOJ noted some facts that did not make it into the federal court order:
“C.C.’s life has been filled with isolation, anxiety, and fear, not just for C.C., but for his parents, too…. C.C. became extremely anxious at everyday places, such as the beach, aquarium, stores, or the airport…. Family outings with C.C. required hyper-vigilance to ensure that the manifestations of his disability did not result in injury. After C.C. fled the house and required police assistance to be located and returned home, his parents decided to get C.C. an autism service dog, an investment that cost $14,000, to protect C.C. and help him manage the manifestations of his autism.” (citations to court record omitted)
As to the dog’s training, the DOJ adds:
“Eddy is trained by ASDA to (1) resist by tether when C.C. attempts to elope or bolt; (2) redirect or ground his focus; (3) apply deep pressure when C.C. begins stimming [engaging in repetitive behaviors]; (4) nudge, lick, or otherwise redirect C.C.’s attention when he becomes anxious; (5) remain near C.C. to carry his communications cards; and (6) assist C.C. in his ability to communicate and socialize.”
As to Eddy’s success with C.C., the DOJ noted:
“Eddy enabled C.C. to visit the beach with his family, redirecting much of C.C.’s anxiety…. Eddy also calmed C.C.’s customary anxiety caused by a visit to the doctor…. Even a trip to the airport, an unfamiliar environment that would normally have triggered severe manifestations of C.C.’s autism, occurred with little ordeal due to Eddy’s work…. After years of indecipherable vocalizing, including the inability to say ‘Mom’ or ‘Dad,’ within three months of being matched with Eddy, C.C. said ‘Eddy.’”
The Statement of Interest noted that the ASDA trainer had planned to conduct training for the school’s staff on autism service dogs but the school declined to permit Eddy inside. The court observed that because “Cypress refused to allow Eddy in school, Cypress has no knowledge of how C.C. uses Eddy or how Eddy would behave in school.” Refusing to even let staff learn about the dog, as I discussed in Service and Therapy Dogs in American Society, often influences courts.
The DOJ then describes harm from the separation resulting from the school’s actions:
“In the end, C.C. went to school while Eddy stayed home, and the harm caused by this separation was immediately apparent.... For example, in the first three days, Eddy fled from a school aide and nearly succeeded in boarding the wrong school bus…. Moreover, since school began, the bond between C.C. and Eddy has deteriorated because of the separation…. C.C. is becoming more distant with Eddy and requires more prompting.... Every school day, C.C. loses valuable time when he could be continuing to work and bond with Eddy to increase his safety and quality of life. Because C.C.’s work with Eddy is limited to after school, the bond between the two is dissolving, making the assistance less effective.”
The DOJ observes that C.C. may use a service animal for the rest of his life. Therefore, the failure to form the best bond possible may affect C.C. not only as a student, and while he is going to school, but even afterwards. The Statement of Interest summarizes research on the value of using service dogs with autistic children, and argues that C.C. was discriminated against and a preliminary injunction should issue. The school has remedies in the event that a service animal is out of control or not housebroken.
As to the School District’s fundamental alteration argument, the Statement notes:
“Cypress speculates – since it has not experienced Eddy’s presence in the classroom – that presence of the service animal would fundamentally alter the Individualized Education Programs of other students. This type of reasoning would lead to the erroneous conclusion that a fundamental alteration in the nature of a school’s special education program results whenever one student’s circumstances are significantly modified, in an IEP [individualized education plan] or otherwise, such as a child coming to school for the first time using a wheelchair. This wide-ranging argument is not supported by the ADA. It is hard to imagine any alteration relating to C.C.’s use of a service animal that might be so fundamental that it would alter the nature of Cypress’ special education program, since the program is designed to be highly flexible and tailored so as to meet the needs of individual students with disabilities.”
The DOJ’s Statement is worth reading not only for its significance in this case, but to show what the agency is likely to argue in other service animal situations involving school children.
Failure to Exhaust (Temporarily) Derails Parents’ Efforts to Get School to Admit Service Dog
A four-year-old boy living in Vale, North Carolina, had been diagnosed with “static encephalopathy due to fetal alcohol exposure, Fetal Alcohol Spectrum Disorder (FASD), mild developmental delay, sensory integration difficulties, sleep apnea, insomnia, obsessive-compulsive traits, and some features of pervasive developmental disorder.” The child was also described as having “aggressive and self-injurious behaviors, hyperactivity, lack of impulse control, elopement, and other problematic and dangerous conduct.” As in the preceding case, the child’s initials are used by the court, but press have further identified the child and the parents who adopted him.
As described by the federal district court in A.S. v. Catawba County Board of Education, 2011 WL 3438881 (W.D.N.C. 2011), A.S. began working with Chatham, a service animal, in September 2009. North Carolina provides for registration of service animals and issues registrations to “a person with a disability who makes application for registration of an animal that serves as a service animal or to a person who is training an animal as a service animal.” The law, N.C. General Laws 168-4.3, also provides that the Department of Health and Human Services, which maintains the service animal registry, may itself issue a certification or “accept the certification issued by the appropriate training facilities.” Chatham was Service Animal # 296 in the North Carolina registry, having been trained for 11 months for 4 to 6 hours a day to provide Deep Pressure Therapy through actual physical contact with A.S. “as well as other techniques for redirection.” The court cited documents submitted that A.S. was “generally aversive to human touch” even from his parents and other adults.
A.S. was attending a pre-kindergarten program at Mountain View Elementary School in Catawba County, A group of school personnel and professionals collaborated with A.S.’s parents to devise an Individualized Education Plan (IEP) for A.S. The parents brought Chatham to the attention of the school, but to their disappointment, they were notified six days before the beginning of the 2010-11 academic year that A.S. would not be allowed to have Chatham present with him during the school day. The Catawba County Board of Education apparently questioned whether Chatham was, in fact, a service animal.
The parents alleged that the Board never told them why their request that A.S. be accompanied by Chatham at the school was denied and never spoke to Chatham’s trainer. They then requested a modified schedule to mitigate the “ongoing harmful effects” of A.S.’s separation from Chatham. The Board allowed a pickup of A.S. at noon so that A.S. could nap at home with Chatham.
At some point after the school year began, the IEP team at the school reported that A.S. “made a nice adjustment” and was able to access the programs, facilities, and services of the school to the same extent as the school’s nondisabled children, and that A.S. did not need the service dog in order to benefit from the special education services he was being provided.
The parents sued on behalf of A.S., alleging discrimination under the Rehabilitation Act, the Americans with Disabilities Act, and regulations issued under those Acts. They sought monetary damages for training costs incurred to restore and maintain the service animal’s training during the period of separation.
The school responded by arguing that the parents had not exhausted administrative remedies, as required under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1415(l). Administrative remedies to be exhausted under this provision include an impartial due process hearing to be conducted by the State or local educational agency.
The district court noted that an exhaustion requirement serves two main purposes: allowing an administrative agency an opportunity to correct its own mistakes while discouraging disregard of the agency’s procedures, and resolving disputes much more efficiently and inexpensively than is the case with litigation. Exceptions are allowed by courts to exhaustion requirements if the administrative effort would be futile or would cause severe harm. The court summarized the issue of possible harm as follows:
“The Plaintiff argues hardship in that according to Plaintiff the all important relationship between A.S. and Chatam [the name is usually spelled with an ‘h’ in the case and press reports], established during lengthy training, would be doomed if the dog continues to be excluded from the Plaintiff's presence during school hours commencing with the next school year. The Plaintiff argues that the service dog's presence for A.S. is the only treatment which worked to ameliorate the child's disability, at least in his home environment, in particular to address the problem of his repeated ‘meltdowns.’ It may be that the effectiveness of Chatam as a service dog for Plaintiff's neurological problems would tend to be degraded by the absence of the dog during school hours. It is, however, on the showing before the Court, insufficient as a claim of hardship. In particular, it is insufficient to overcome the evidence supporting the very successful educational program put into place thus far for A.S. The latter has resulted in his marked progress educationally and socially by way of the current Individualized Education Plan (‘IEP’) put into place under the IDEA.”
The meltdowns referred to by the parents involved such behaviors as A.S. banging his head against the floor and other hard objects, biting himself and his clothing, drooling, and pulling his own hair as hard as possible. The court noted, however, that there was evidence that the meltdowns were “subject to successful management by techniques currently applied in the school setting.”
The parents argued that part of the harm coming from A.S.’s separation from Chatham resulted from an increased attachment between A.S.’s mother and Chatham. The parents produced an expert, but his testimony on the issue was that research was conflicting as to whether increased bonding between the mother and the dog might detract from the dog’s benefits to A.S. The court also noted there were five other siblings living in the home, making this environment different from that of the school. Autism service dogs are somewhat atypical in that the commands of a handler, usually a parent, must direct the dog, but the commands of the child must often be ignored.
The parents argued that exhaustion arguments had been denied by two other courts, Sullivan v. Vallejo City Unified School District and C.C. v. Cypress School District, the first case discussed above. The federal district court in North Carolina, however, found that both these California cases “fail to adequately address how a litigant escapes the express mention of claims brought under the ADA and Section 504 within § 1415(l) [of the IDEA].” The North Carolina federal district court also referred to the Statement of Interest filed by the Department of Justice in C.C. v. Cypress School District, but noted that DOJ’s filing had to do with the merits of the cause of action there, not the procedural issue before it regarding A.S.
The district court granted the school board’s motion to dismiss, but without prejudice, meaning that this case may continue after an administrative hearing (or potentially an appeal to the Fourth Circuit).
Can the Cases be Distinguished?
It could be argued that the two cases present largely identical facts that were decided differently because of the effectiveness of the lawyers or because of differences in the philosophies of the judges before whom the matters were brought. That might, however, be somewhat simplistic. The first case refers to a clear decline in the student’s mental condition as a result of his not being able to attend school with his dog, while the second case appears to involve a student who improved despite the absence of his service dog.
The federal court in North Carolina saw the issue before it as primarily procedural, while the federal court in California looked directly at the child and the harm suggested by the evidence. Since the North Carolina case, at least as described in the court’s opinion, involved a child who continued to improve despite the separation from his service dog, the court apparently felt that some delay was acceptable. The Department of Justice would disagree, having argued in California that the use of a service dog was, as with other aids available to a disabled person, up to that person or his guardians. The fact that the child might improve scholastically without the dog was irrelevant given that the child’s ability to use the dog outside the school, or to use dogs in the future after the individual was finished with school, would be harmed by the increased difficulty in forming the necessary bond from being deprived of a relationship with the the dog in the classroom. This argument, clearly stated in the DOJ’s Statement of Interest, essentially applies the general principles of access law for service animals to schools. The approach of the federal court in North Carolina allows the possibility of distinguishing school environments from most places of public accommodation.
It must be doubted whether the North Carolina court would have taken the same approach with a guide dog. The regulations issued by the Department of Justice put all service dogs, even psychiatric service dogs, on the same plane when it comes to assessing access provisions. Yet the North Carolina school was permitted to make such a distinction, even if only for a procedural reason. Nevertheless, the court must have considered that the hearing was not useless, that it could somehow justify continued separation of the boy from the dog. It seems unlikely that this result can be justified under any current interpretation of the relevant disability law. A specialized school for the blind might insist that students use white canes instead of dogs, but this would presumably not occur without the possibility of a reasonably accessible school permitting guide dogs. Such a situation would involve a fundamental alteration and would not be analogous to that in the North Carolina school.
Regardless whether comparing these two cases is a matter of apples to apples or apples to oranges, the California federal court has the better reasoning. Having been consulted in other cases (none of which reached trial), I have come to believe that the disputes often arise when a school district’s administrators, or those influencing those administrators, have a knee-jerk skepticism about the benefits of service dogs. When the initial presumption is that the parents are trying to send a pet to school, the reaction will often be negative since some administrators do not understand that service animals are not pets. A school that does not even allow its staff to encounter the dog and its trainer in advance of a placement is prejudging the value of the dog.
The fact that these courts are not agreeing, and others are facing similar issues, may mean that this will eventually become a matter for the U.S. Supreme Court.
For a recent article about ways dogs are helping in schools, see the piece posted on the website of Online Colleges, 9 New Ways Schools Are Using Dogs. Thanks to Jasmine Hall for bringing this to my attention.