By Lori Atherton
U-M Law Quadrangle
Last Halloween was momentous for Brent and Stacy Fry and their 12-year-old daughter, Ehlena.
While Ehlena’s peers were getting ready for trick-or-treating, the young girl and her retired service dog, Wonder, were at the U.S. Supreme Court to hear arguments in their disability-rights case Fry v. Napoleon Community Schools.
At issue was whether the Frys could sue Ehlena’s former public school district for denying her the right to use a service dog in class.
Nearly four months later, on Feb. 22, the Frys celebrated another momentous occasion: The Supreme Court unanimously ruled in their favor.
“I saw with my own eyes how Wonder helped my daughter grow more self-reliant and confident,” Stacy Fry said in a statement after the ruling was announced. “We are thankful the Supreme Court has clarified that schools cannot treat children with disabilities differently or stand in the way of their desired independence.”
The Fry family’s legal team included Samuel Bagenstos, the Frank G. Millard Professor of Law at the University of Michigan Law School, who argued the case before the court.
“Our victory should ease the way for kids around the country, with many different disabilities, to assert their rights in court,” says Bagenstos. “It’s been a real honor to represent such a terrific family who are standing up for their rights.”
The Frys’ journey to the Supreme Court began in fall 2009 when Ehlena was five years old and about to enter kindergarten. Ehlena, who has a severe form of cerebral palsy that limits her mobility, was prescribed a trained service dog by her pediatrician to help her gain more independence.
Wonder, a fluffy white Goldendoodle, helped Ehlena open doors, turn on lights, pick up dropped items, remove her coat, and steady her as she used a walker.
“Wonder helped Ehlena gain the skills needed to become more independent and function at a higher level than what would have been possible if she had to rely on a human aide,” says Stacy.
Ehlena was looking forward to attending kindergarten with Wonder by her side, Stacy says.
But soon after she started at Ezra Eby Elementary School the Michigan town of Napoleon, near Jackson, the Frys were told that Wonder wasn’t welcome.
In April 2010, after the ACLU of Michigan intervened on the Frys’ behalf, Wonder was allowed to attend school with Ehlena on a trial basis, but wasn’t acknowledged as a service dog.
Wonder was required to stay in the back of the classroom and couldn’t accompany Ehlena during recess, lunch, and other activities.
If Ehlena needed assistance with certain tasks, the Frys were told a human aide could perform them in Wonder’s place. When the school year ended, the Frys learned that Wonder wouldn’t be allowed back in the fall.
“It was a huge letdown and disappointment for Ehlena, who had this dog that was supposed to help her but was not accepted at school with her,” says Stacy.
That same year, 2010, the Frys filed a complaint with the U.S. Department of Education Office for Civil Rights (OCR).
Not wanting to separate Ehlena and Wonder any further, they homeschooled their daughter while awaiting a decision from the OCR, which came in May 2012.
The finding? Ehlena’s rights had been violated under the Americans with Disabilities Act (ADA).
Napoleon Community Schools agreed to let Wonder return to school with Ehlena for second grade, but still refused to let him fulfill his role as a service dog.
“Their response let us know that there was animosity, and that this wasn’t going to be a warm welcome or a positive learning environment for Ehlena,” Stacy says.
Instead, the Frys found the right environment for Ehlena in the nearby Manchester school district. When Ehlena began second grade there, school officials welcomed Wonder with open arms, and even gave him his own ID badge and included him in the school yearbook.
“He had a bigger package of pictures than Ehlena did,” Stacy laughs. “Manchester really thought about Ehlena and her needs, and not about whether something bad would happen with Wonder in the classroom.”
As Ehlena settled in at her new school, the Frys — represented by the ACLU — filed a lawsuit against their former school district.
Lower courts and the Sixth Circuit Court of Appeals dismissed the case, ruling that the family had to exhaust all administrative remedies under the Individuals with Disabilities Act (IDEA) — which entitles students with disabilities to a free appropriate public education tailored to their individual needs — before seeking damages under the ADA.
The Frys maintained that Ehlena’s education wasn’t the issue; rather, it was the school’s unwillingness to accommodate her use of a service dog in class to help her gain independence.
Now, the Supreme Court’s 8-0 ruling in Fry v. Napoleon Community Schools has opened the door for the Fry family to “sue for violations of the ADA unrelated to the adequacy of Ehlena’s education without first exhausting administrative proceedings.”
The case will go back to the Sixth Circuit Court of Appeals for review.
“This victory will, once and for all, remove unfair legal hurdles for victims of discrimination across the country that prevent students from seeking justice guaranteed by the Americans with Disabilities Act,” says Michael Steinberg, legal director of the ACLU of Michigan and a lecturer and public interest/public service fellow at Michigan Law.
Dykema Gossett PLLC served as cooperating counsel, including Michigan Law alumnae Jill Wheaton and James Hermon.
Ehlena now is in sixth grade, and Wonder has retired as a service dog.
He gave Ehlena the desired independence and self-reliance she sought, notes Stacy.
Despite the lengthy legal process, the Frys say they are grateful their case has brought visibility to disability rights, and hope it will serve as an example for other cases involving the use of service dogs.
“We’ve raised awareness that having a service dog in school can work — and worked well,” says Stacy. “Hopefully, schools will think twice about being fearful, and be more accepting and willing to teach students the right way to include somebody.
“No one deserves to have done to them what was done to Ehlena,” she adds. “They deserve to have their service dogs with them and to not be denied their independence because of the tool they choose to use. Ehlena wanted to gain her independence through a service dog, and she shouldn’t have been denied that opportunity. It’s her right and the right of other kids like her to gain that independence and feel accepted at school — one of the most important places for a child Ehlena’s age. Michael [Steinberg] always said that to make a child choose between their education and their independence is cruel and illegal.”
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