School districts frequently ask how to balance the rights of a person who brings a service animal onto school grounds against the rights of others. For example, if one child in a classroom is allergic to pet dander, but another child demands to bring her service dog to school, whose rights prevail? These concerns are not limited only to the rights of students but also can easily arise with an employee’s request for accommodations under the Americans with Disabilities Act. In other scenarios, members of the public, including parents or spectators at a sporting event, could also be covered.
A court decision this month out of New York gives one example of conflicting rights of different members of the school community. The parents of a student with asthma and severe allergies filed a wide-ranging lawsuit in the U.S. District Court for the Southern District of New York, arguing that a school district violated their child’s rights by not having a policy prohibiting service animals and by allowing a service animal on the school grounds several times in violation of their child’s 504 plan.
In this case, the parent of a different student required the use of a service animal and brought the animal to multiple school events in which the student with the allergy participated. The student with the allergy had a 504 plan that required the school to, among other things, ensure no animals come within 30 feet of the student, keep the student out of contact with service animals, implement a cleaning protocol after animals are within the school building, and communicate in advance with her parents when a service animal was anticipated to be within the school building.
Additionally, the parents had requested other accommodations that are not discussed in the court decision and had also requested a blanket policy banning service animals from school. The school district rejected the latter request, explaining that it had an obligation under federal disability law to allow service animals within the building.
The court dismissed most of the claims but will allow the disability discrimination claim to proceed. This relates to alleged violations of the 504 plan. The court recognized that the school is required under federal law to allow service animals but noted that this does not excuse a school district from fulfilling its obligations under a 504 plan to protect a student against allergies. This case shows how distinct legal rights can come into direct conflict.
While the public court filings do not provide sufficient detail to determine what, if anything, the school might reasonably have done differently (or even if it did, in fact, violate the student’s rights), one lesson is that in allowing a student, staff member, or school visitor to exercise her right to use a service animal, a school district must consider whether accommodations are necessary to ensure that the rights of students with allergies are protected. This is a difficult balance that will depend very much on the individual facts of each case.
– Doe v. United States, 118 LRP 49416 (S.D.N.Y. 2018).
In October, a flight from Charlotte to Cleveland was delayed when a woman carrying what she characterized as an emotional support animal refused to deplane from the aircraft. Although the airline permits air travel for emotional support animals, the passenger failed to tell employees that her support animal was a squirrel. The airline does not allow rodents of any kind – including squirrels – aboard their aircraft, so the passenger was asked to deplane prior to takeoff. When the woman refused to deplane, all other passengers were forced to do so until the woman and the squirrel could be removed.
Would an Ohio public school district be required to permit the squirrel to accompany an individual onto school property? The answer to this question is no, because the animal does not meet the definition of a service animal under state or federal law.
Although public school districts are not regulated by the same rules as airlines, they are generally required to permit service animals to accompany individuals with disabilities on school premises and at school-related functions. Emotional support animals may be treated differently, as discussed below. It is important for school district staff to know how state and federal law define the term service animal and also to understand when an animal may and may not accompany an individual.
What is a service animal under the law?
Under federal law, a service animal is defined as a dog that is trained to do work or perform tasks for the benefit of an individual with a disability. Although the definition restricts the meaning of “service animal” to only a dog, federal law also permits a miniature horse to accompany an individual with disabilities under limited circumstances.
To determine whether a miniature horse must be permitted to accompany an individual with a disability, a public entity may consider four factors:
- The type, size, and weight of the horse and whether the facility can accommodate based on these factors
- Whether the handler has sufficient control of the horse
- Whether the horse is housebroken
- Whether the presence of the horse compromises legitimate safety requirements that are necessary for safe operations
It is important to note that an emotional support animal is not defined as a service animal under federal law. Emotional support animals provide comfort by being with a person rather than being trained to perform a specific task for an individual with a disability. A public entity may therefore not be required to treat an emotional support animal in the same fashion.
Also understand that other species of animals, whether wild or domestic, trained or untrained, are not defined as service animals either.
State laws may also apply to service animals. Ohio further classifies dogs into four groups (R.C. 955.011):
- Assistance dog – a guide dog, hearing dog, or service dog that has been trained by a nonprofit special agency
- Guide dog – a dog that has been trained or is in training to assist a blind person
- Hearing dog – a dog that has been trained or is in training to assist a deaf or hearing-impaired person
- Service dog – a dog that has been trained or is in training to assist a mobility-impaired person
When may a school district exclude a service animal?
A school district may exclude a service animal in a few circumstances. For instance, if the presence of the animal would require the district to modify policies, practices, or procedures in a way that would “fundamentally alter” the district’s services, programs, or activities, it may be excluded. This is a very high threshold to meet. A district may also be able to exclude animals that present legitimate safety concerns, are not housebroken, or do not remain under effective control of the handler.
What about individuals who might be allergic to the service animal?
A school district is expected to carefully consider the risks to all parties involved, including those with a service animal and those who are allergic to one. A district should thoroughly explore ways to reasonably accommodate the needs of all individuals involved before it considers excluding a service animal because of an allergy.
Can a district restrict the animal’s access to certain areas?
Generally, a service animal must be permitted to accompany an individual in all areas where the public is permitted to go. This includes access to facilities and to all school-sponsored activities and events, even if they occur after hours, unless a legitimate reason for a restriction or exclusion applies (see above).
A school district’s obligation to permit service animals applies not only to students but also to parents and visitors. Generally, public entities must allow individuals with disabilities to be accompanied by service animals in all areas that are open to the public. You should contact your district’s legal counsel if you have questions about service animals in your school facilities and programs.
As many in education are aware, on March 22, 2017, the U.S. Supreme Court published an opinion in a significant special education case: Endrew F. v. Douglas County School District RE–1, 580 U.S. ___ (2017). This decision clarified the standard for a free appropriate public education (FAPE) for students with disabilities:
To meet its substantive obligation under IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
This decision confirmed that the standard of “merely more than the minimum” was too low. Essentially, the Court established two standards:
|Supreme Court Decision
||Student who is fully integrated in the regular classroom and able to achieve on grade level
||IEP must be reasonably calculated to enable the student to receive passing marks and advance from grade to grade
||Student who is not fully integrated and not able to achieve on grade level
||IEP must be appropriately ambitious / reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances
However, when the U.S. Supreme Court issued its decision on March 22, the case was not finished. The case was remanded back down to the lower courts to apply the new standard and determine whether Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school.
On February 12, 2018, in relying on the new standard from the Supreme Court, Judge Babcock of the United States District Court for the District of Colorado held that Endrew’s parents were entitled to tuition reimbursement for the unilateral placement of their son in a private school. The judge decided that the IEP did not satisfy the Court’s revised FAPE standard. Minor changes in Endrew’s IEP were noted throughout the years – including updating and making minor or slight increases in the objectives, carrying over the same goals from year to year, or abandoning goals if they could not be met – but these minor changes were unacceptable as they provided the basic floor of opportunity, not progress appropriate in light of Endrew’s circumstances. (Note: Prior to the Supreme Court’s Endrew F. decision, these same IEP changes were found to meet the FAPE standard in Colorado by the same judge.)
Additionally, the judge determined that the school district could not hide behind the fact that the student’s severe behavioral problems prevented him from making appropriate progress because the school district failed to conduct a functional behavior assessment; to implement appropriate positive behavioral interventions, supports, or strategies; or to develop an appropriate behavior intervention plan. This failure on the school district’s part to appropriately address Endrew’s behaviors “cuts against the reasonableness of [his] IEP.” The court held that Endrew could have made greater progress had the school district implemented appropriate behavioral supports.
Although following Endrew F. back through the court system allows us to see how courts around the country will apply this new legal standard, the legal standard applied by the Sixth Circuit Court of Appeals (controlling in Ohio) of “meaningful benefit” has not changed and is similar to “progress appropriate in light of the child’s circumstances.” Ohio school districts should likely not see a significant change in their IEPs and services.
Ohio school districts should, however, take away additional learning opportunities from this recent Endrew F. decision:
- Review IEPs to ensure that each is reasonably calculated to enable the student to make appropriate progress in light of the student’s circumstances.
- IEPs should change from year to year as the student changes, learns and grows.
- IEPs should be specifically tailored to the student’s needs and geared for progress.
- Goals should be measurable annually, reflecting appropriate achievements for the student given his/her unique situation.
- IEP teams should be reminded that that behavior management can play an incredibly important role in providing FAPE to students.
- When a student’s behaviors are so severe that they impede progress toward IEP goals, the behaviors should be addressed through timely functional behavior assessments, behavior intervention plans, and, when appropriate, behavior goals.
Endrew F. v. Douglas Cty. Sch. Dist. RE-1, No. 12-cv-2620, 2018 WL 828019 (D. Colo. Feb. 12, 2018).
During Ennis Britton’s October 2017 Special Education Symposium, participants around the state were given the opportunity to submit questions on note cards. Because of time constraints and the large response, our Special Education Team was not able to address all of these questions during the presentations. In the coming months we will address some of these questions through blog posts and a new feature called “Special Education Spotlight” in the School Law Review newsletter.
One participant asked how to respond to a parent who asks for her child to be evaluated under the Individuals with Disabilities Education Act (IDEA) when the district does not suspect a disability but the parent has a private evaluation that concludes the student has a disability.
This scenario brings at least two parts of IDEA into play. The first is the issue of child find. A district has an obligation to “find,” or identify, all children within its territory that are potentially eligible under IDEA or Section 504. This is an affirmative obligation, meaning that each district must take active steps to identify such children – it is not enough to wait for parents to ask for an evaluation. That said, a parent certainly has a right to ask for an evaluation. In such a case, the district should respond in writing to the request using a Prior Written Notice form (PR01), either agreeing to proceed with an evaluation or refusing to do so.
A district should be cautious about refusing to evaluate a child when, as is the case in this scenario, an outside evaluator has identified the child as having a disability. Even when a school has not observed anything to suggest that a child has a disability, it is possible that he or she does. For example, a child might have ADHD but not exhibit characteristics at school due to effective medication. Such a child may still be eligible under Section 504 because the law requires districts to factor out mitigating measures such as medication in making eligibility determinations.
Second, assuming the district in this scenario proposes to evaluate the child, the parent consents, and the evaluation is completed, the IEP team may need to consider the private evaluation shared by the parent as part of the evaluation process. This is required whenever a parent acquires an independent educational evaluation (IEE) that meets a district’s reasonable criteria (credentials of the evaluator, validity of the evaluations, etc.). The good news is that in this scenario, absent an order from a court or hearing officer, the district is not required to pay for the IEE because the parent did not disagree with a district evaluation at the time the IEE was acquired.
Even when an IEE meets a district’s reasonable criteria, the law does not require absolute deference by the IEP team to the opinions of an outside expert. In fact, the law gives the IEP team the ultimate discretion as to how much weight to give to the IEE. The specific regulatory language requires the IEP team to “consider” the IEE. This means that the team reviews the information, holds it up against other information the team has about the child, and engages in meaningful discussion of the information. It does not mean that the team adopts all findings or directions of an outside evaluator because he or she is an “expert” or holds some sort of advanced degree. Remember, while outside opinions can be helpful, in most circumstances the outside evaluator will have spent at most a few hours with the child in a clinical setting. The IEP team will typically have weeks, if not months or years, of experiences with the child in an authentic setting. School personnel should neither be intimidated nor diminish their own expertise when presented with an IEE.
In the end, if a parent has sought an outside evaluation before asking the school to conduct an evaluation, and the school does not suspect a disability, this may be a sign of further disputes to follow. An early conversation with a member of Ennis Britton’s Special Education Team may be beneficial as you respond to scenarios such as this.
Endrew F. v. Douglas County School District
On March 22 the U.S. Supreme Court published an opinion in a significant special education case. Issuing out of the Tenth Circuit Court of Appeals in Colorado, Endrew v. Douglas poses the question of what level of educational benefit public schools must provide to students with disabilities in order to satisfy the requirement of a free appropriate public education (FAPE) according to the Individuals with Disabilities Education Act (IDEA).
The Supreme Court last heard arguments on this topic in the 1982 case Board of Education v. Rowley, in which the Court determined that an individualized education program (IEP) must be “reasonably calculated to enable the child to receive educational benefits.” Since that time, federal courts across the country have issued differing opinions on the level of educational benefits that students must receive, with the majority of circuits requiring “merely more than de minimis” or “some benefit” (including the Tenth Circuit, where this case originated from). Only three circuits (one of which is the Sixth Circuit, which includes Ohio) have held to a higher standard – “meaningful benefit.”
The Supreme Court’s March 22 opinion expands upon the FAPE standard set forth in Rowley:
To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated
to enable a child to make progress appropriate in light of the child’s circumstances.
The U.S. Department of Education had suggested in a court brief that school districts offer a program “aimed at significant educational progress in light of the child’s circumstances.” While the Supreme Court adopted “appropriate” instead of “significant” as the standard, its unanimous decision confirms that a standard requiring nothing more than a minimal educational benefit is too low.
The Court’s holding does not overrule the Rowley decision. Instead, in clearly rejecting other, higher standards, and declining the low standard adopted by the lower court, the High Court underscored Rowley’s emphasis on individualized benefits based on each child’s potential progress. Although the family sought imposition of a standard that was “substantially equal to the opportunities afforded children without disabilities,” such as attaining self-sufficiency and contributing to society in equal ways, the Court rejected that idea as “entirely unworkable” and noted that it would be “plainly at odds” with Rowley. The 1982 Rowley case also considered but rejected similar language regarding reaching the maximum potential of each student. Higher standards such as this would significantly increase costs to districts for the more than six million students with disabilities.
Although “progress appropriate in light of the child’s circumstances” is worded differently from the Sixth Circuit’s standard of a “meaningful benefit,” in practice it should be similar. As our circuit has held the highest standard throughout the country, districts that have held to this standard in their IEPs will likely not see a significant change in their IEPs and services. The Supreme Court’s decision may have a greater effect on special education programs in circuits whose standard has previously been lower, such as the Tenth Circuit’s standard of merely more than the minimum.
Even with the Supreme Court’s decision, this is not the end of the saga for Endrew F. Now the case goes back to the Tenth Circuit Court of Appeals to issue a ruling consistent with the Supreme Court’s decision to reject the previous, lower standard that the circuit had used.
On January 11, the U.S. Supreme Court heard arguments in one of the most significant special education cases in past three decades. In the 1982 case Board of Education v. Rowley, the Supreme Court determined that an individualized education program (IEP) must be “reasonably calculated to enable the child to receive educational benefits.” Since then, federal courts have weighed in on educational benefits, some determining that a minimum standard, de minimis, is enough, while others, including the Sixth Circuit (Deal v. Hamilton Bd. of Ed., No. 03-5396, 6th Cir. 2004), have held that a meaningful educational benefit is needed. With federal circuits divided on this federal issue, the Supreme Court agreed to hear the case at hand. The question before the Court is as follows:
What level of educational benefit must school districts confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act (IDEA)?
Endrew F., who goes by the name Drew, is a student with autism in Colorado. He was placed on an IEP from preschool through fourth grade. His proposed IEP for fifth grade contained goals that his parents say too closely resembled the goals from previous years. Dissatisfied with the progress Drew was making in public school, his parents withdrew him and enrolled him in private school.
Drew’s parents filed a complaint with Colorado’s Department of Education, claiming that Drew had been deprived of a free appropriate public education (FAPE). The parents also claimed that Drew had made academic, social, and behavioral progress in private school. They asked to be reimbursed for the cost of his private schooling, per IDEA, which provides for reimbursement of private school tuition and related expenses if a public school cannot meet the educational needs of a student with a disability. Drew’s parents and the school district argued their case in an administrative hearing, then in a federal district court, and finally on appeal in the Tenth Circuit Court. All of the rulings were in favor of the school district, finding that the public school had provided Drew with FAPE, that he had made “some academic progress” which was “more than de minimis,” and that his IEP was “substantively adequate.”
IDEA grants students with disabilities with the right to receive “appropriate” special education and related services at public expense. The IEP must be designed to provide for this “appropriate public education” under IDEA. However, IDEA does not define the term “appropriate,” nor does it define the required level of educational benefit.
Clearly, the law requires that special education be designed to each child’s individual needs and that schools provide services to benefit special education students. How far schools must go to benefit students, however, remains unclear.
The 1982 Rowley case involved a deaf student who was an excellent lip reader. Her parents asked for an interpreter, but the school said she was doing well enough that she didn’t need one. Her parents contended that she was not reaching her full potential, but the Supreme Court held that a school is not required to maximize each student’s potential. After the Rowley decision in 1982, many federal courts used the analogy that schools provide the educational equivalent of “a serviceable Chevrolet” but not a “Cadillac.”
The level of educational benefit therefore remains unclear and undefined, which results in inconsistent federal court decisions. The standards in federal court range from merely more than a minimum benefit, to some benefit, to a meaningful benefit. The Endrew v. Douglas case currently in the Supreme Court goes beyond the two extremes of minimum benefit and maximum potential and focuses specifically on the level of educational benefit required of schools under IDEA.
The Supreme Court requested input from the federal government, which urged the Court to reverse the Tenth Circuit’s ruling, noting that it “is not consistent with the text, structure, or purpose of the IDEA … and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law.”
A report summarizing the January 11 Supreme Court arguments notes that one thing was relatively clear: “The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial.” The justices were also concerned with imposing additional costs on school districts by requiring them to provide increased services and creating educational standards without being educational experts. They considered the idea of flexibility in IDEA, possibly tailoring special education to the student rather than to the grade level.
Counsel for the U.S. Solicitor General argued that IDEA requires a program “aimed at significant educational progress in light of the child’s circumstances,” which led to discussion among the justices about the right words and adjectives to describe the standard. While Justice Sotomayer thought that IDEA “provides enough to set a clear standard,” Justice Roberts concluded the law has “really nothing concrete” for courts to review.
Neal Katyal, the attorney for the school district, argued that the level of “some benefit” is the same as “more than merely de minimis,” and this is the level he was advocating. Justice Breyer noted that IDEA has been amended so that an IEP is designed for students to “make progress in general education” and concluded that “some benefit” along with “make progress” equals more than a minimum standard. Katyal noted that the more-than-minimum standard has worked for many years, and Justice Ginsburg hinted that this standard had no precedent for the Court and could be replaced with something more stringent.
The U.S. Department of Education proposed a standard that school districts offer a program “aimed at significant educational progress in light of the child’s circumstances,” which the justices seemed to regard as most consistent with existing law.
Drew has garnered support from organizations such as the National Center for Learning Disabilities and the Parents Education Network in addition to more than a hundred members of Congress. Without taking sides, the National Association of State Directors of Special Education filed a legal brief saying that schools already provide a “meaningful benefit”through IEPs.
Although a decision is not expected until this spring or summer, this case is likely to have significant impact on special education programs throughout the country.