The Case of “Wonder” the Service Dog & OCR Withdraws Previous Guidance on Transgender Students

By Sean A. Fields, Co-chair of the School Law Group

School Law Snapshot

The Big Picture...

In the Fry v. Napoleon Community Schools case, the U.S. Supreme Court issued an 8-0 decision in favor of a student who filed a complaint against a public school district for denying her request to use "Wonder," a service dog, at school. The Supreme Court held:

  • The exhaustion of the administrative procedures required by the Individuals with Disabilities Education Act (IDEA) is unnecessary where a plaintiff's suit is based on something other than the denial of a Free Appropriate Public Education (FAPE) under IDEA.
  • The application of the rule requiring a plaintiff to exhaust administrative procedures under IDEA before seeking other relief hinges on the question of whether a lawsuit seeks relief for a denial of FAPE.
  • While the IDEA guarantees individually tailored education for disabled children, Title II and Section 504 promise non-discriminatory access to public institutions for people with disabilities of all ages. Therefore, if a claim is not based on a denial of FAPE but is based on other federal discrimination statutes, a plaintiff may be entitled to relief without exhausting IDEA's administrative procedures.

The Close Up...
The case of "Wonder the Service Dog" involves a request by the parents of "E.F.," a student with severe cerebral palsy who requested permission for "Wonder," a trained service dog, to assist her at school. The school district initially took the position that because she was provided with a human aide, the service dog was unnecessary. Subsequently, her parents removed her from the district and filed a discrimination complaint with the Office of Civil Rights (OCR) under Title II and Section 504 of federal law. After OCR agreed with the complaint, the district invited the student to return to school with Wonder. The student's parents did not re-enroll her in the district and subsequently filed suit in federal court under the same statutes cited in the OCR complaint.
The federal District Court granted summary judgment in favor of the district and the U.S. 6th Circuit Appeals Court affirmed the decision. The Supreme Court reversed and remanded the 6th Circuit's decision after concluding that IDEA guarantees individual educational services for disabled children while Title II and Section 504 promise nondiscriminatory access to public institutions for any disabled person. While there may be overlap between those statutes, a complaint brought under Title II or Section 504 might seek relief for discrimination irrespective of a school's obligation to provide FAPE under IDEA. Therefore, the case was remanded to the lower court to determine whether the student's complaint seeks relief for the denial of FAPE or solely on the basis of Title II and Section 504.
The big picture for public schools is that claims may now be filed on behalf of special education students despite the failure to exhaust the administrative procedures of IDEA if the claim is not based on a denial of FAPE. Therefore, the failure to exhaust IDEA procedures may not shield school districts from other federal claims filed on behalf of a special education student.

OCR Withdraws Previous Guidance on Transgender Students

In a brief "Dear Colleague" letter issued on February 22, 2017 the Office of Civil Rights of the U.S. Department of Education withdrew the statements of policy regarding their March 13, 2016 "Dear Colleague" letter regarding transgender students citing, "...due regard for the primary role of the States and local school districts in establishing educational policy." As a result, the Department of Education and Department of Justice will no longer rely on the views expressed in the 2016 letter. The following are some important points about OCR's guidance. Despite the fact the latest OCR letter will have an impact on how the federal government deals with complaints regarding transgender student access to restrooms, locker rooms and overnight accommodations, the guidance does not mean that districts may disregard discrimination against transgender students.

  • The latest guidance also leaves open the legal question regarding the rights of transgender students under Title IX or protection under other statutes. As of the date of this article, the Supreme Court has not decided how it will handle the Grimm case, a current case pending before the court involving transgender bathroom access.
  • Local school districts should continue to address issues involving transgender students on a case-by-case basis, especially allegations that a student is being subject to harassment or other forms of discrimination. Districts should also be aware that a number of municipalities in Pennsylvania have either adopted or are considering LGBTQ anti-discrimination ordinances that could affect certain school districts.
  • Finally, the OCR guidance does not require districts with policies or guidelines that are based on the withdrawn March 13, 2016 letter to change those policies or guidelines.
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