Autism-support chickens, anxiety-reducing monkeys … you name it, we’ve seen it.

In recent years, there has been a considerable rise in students requesting a service animal to accompany them in the school building.

Title II of the Americans with Disabilities Act (ADA) [1] generally requires state and local governments, businesses, and nonprofit organizations that serve the public to allow service animals to accompany people with disabilities in all areas of the facility where the public is allowed to go [2]. Under the ADA and Section 504 of the Rehabilitation Act of 1973 (Section 504), school corporations – public and private – are required to make “reasonable accommodations” in their policies, practices, and procedures to accommodate individuals with service animals [3].

However, school corporations face unique challenges when accommodating a student or employee with a service dog. A blind person using a seeing-eye dog to briskly walk in and out of a U.S. Post Office is different from a student with autism utilizing a service dog all day, every day, in a classroom full of other children who may have asthma, allergies, or a genuine fear of dogs.

This got a little more complicated in February 2017, when the U.S. Supreme Court decided Fry v. Napoleon Community Schools [4]. In Fry v. Napoleon Community Schools, the parents of a kindergarten student with cerebral palsy requested to bring her service dog, Wonder, to school with her. Wonder could retrieve dropped items, help the student balance when she used her walker, open and close doors, turn on/off lights, help the student take off her coat, etc. The school district initially denied Wonder access to the classroom, stating that the student had a one-to-one human aide, as provided as part of her special education services in her IEP, who could perform all those tasks. After a lot of legal back-and-forth, the Parents sued the school district in federal court for violating the ADA and Section 504, seeking monetary damages due to the “social and emotional harm caused by the school.”

The school district argued that this case was about the free and appropriate public education (FAPE) provided to the child, so the parents needed to proceed through the Individuals with Disabilities Act (IDEA) since they were challenging the special education services provided by the school. IDEA requires the family to “exhaust administrative remedies,” or simply put, to start at the administrative level of judicial review with a special education due process hearing, and does not provide for monetary damages.

To determine if the parents could proceed under the ADA and Section 504 (and thus, seek money from the school), the Supreme Court asked two important questions to determine the “gravamen,” or crux, of the parent’s claim:

1. Could an adult at the school – say, an employee or visitor – have pressed essentially the same issue?

If the answer to either of these questions is “yes,” then the “gravamen” is not about FAPE and the plaintiff should be able to sue in federal court under the ADA. In the Fry case, the Supreme Court voted 8-0 to send the case back to a lower court to determine the “gravamen” of the parents’ case.

What does this mean for school districts?

The Fry case demonstrates a rising trend in litigation nationwide around the ADA and Section 504. The ADA and Section 504 are all about equal access – allowing students with disabilities to have generally equal access to public facilities and programs as their nondisabled peers, free of discrimination. So when a student is denied equal access to a public school building or program, we may expect to see litigation under the ADA or Section 504. This might look like students being denied access to genuine service animals, students with physical impairments such as appropriate wheelchair ramps, or allegations of discrimination based on disability. In these cases, the issue is not the adequacy of special education services provided by the school district, but rather equal access and disability-based discrimination.

But what has not changed is “autism-support chickens” need not be provided!

Contact CCHA to discuss your unique situation. For more information about Jessica Heiser, please click here.

[1] Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C. § 12131, and its implementing regulation, 28 C.F.R. Part 35.

[2] ADA Revised Requirements: Service Animal, U.S. Department of Justice (2011), available at: https://www.ada.gov/service_animals_2010.htm.

[3] Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104.

[4] Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017).