Education Week - March 1, 2017 - 16

High Court Backs Family in Case of Service Dog at School
Ehlena Fry, a
Michigan 6th
grader who has
cerebral palsy, sits
with Wonder, her
retired service
dog. She had been
denied use of the
dog by her former
school district.

Technical issue
involved right to sue

Title IX at
Heart of
Legal Cases
CONTINUED FROM PAGE 15

including LGBTQ students, not only a
key priority for the department, but
for every school in America," DeVos
said.
Sessions said the guidance "did not
contain sufﬁcient legal analysis or explain how the interpretation was consistent with the language of Title IX."
The Williams Institute at the University of California, Los Angeles'
School of Law estimates that 0.7 percent of U.S. children ages 13 to 17, or
about 150,000, are transgender.
The federal rollback of the guidance
doesn't limit the ability for state and
local decisionmakers to set policies for
transgender students. Fifteen states
have non-discrimination laws that
include gender identity. And many
districts were already accommodating transgender students long before
the federal guidance.
North Carolina has the only state
law restricting school bathroom and
locker room access by biological sex,
but legislatures in many states have
ﬂoated similar proposals.
The Trump administration's deci-

proper analysis of whether the suit
was mainly about special education
or essentially about vindicating the
child's rights under the Americans
with Disabilities Act of 1990 or the
Rehabilitation Act of 1973.
Kagan suggested that it was more
likely the latter since Fry was seeking
to use her service dog for better accessibility at school.
"The Frys' complaint alleges only
disability-based dis crimination,
without making any reference to
the adequacy of the special education services E.F.'s school provided,"
Kagan wrote.
"On remand," Kagan added, "the
court below should establish whether
(or to what extent) the Frys invoked
the IDEA's dispute-resolution process before bringing this suit. And if
the Frys started down that road, the
court should decide whether their
actions reveal that the gravamen of

their complaint is indeed the denial
of a FAPE, thus necessitating further
exhaustion."
Stacy Fry, Ehlena's mother, said in
an interview that she was elated by
the decision, especially the 8-0 judgment of the court.
"For us, it's just that no child should
have their life put on hold because
they choose to be as independent as
possible by using a medically prescribed service dog," she said. "This
is huge for families going through
discrimination. If they're not arguing
their education, they can avoid the
legal drag-out of that."

sion will now trickle down to several
pending court cases.
On the same day the Obama administration guidance was rescinded,
the U.S. solicitor general's ofﬁce informed the U.S. Supreme Court of the
change, explaining in a ﬁling that the
Education and Justice departments
had decided "not to rely on the views
expressed in the [Obama] guidance,
and instead to consider further and
more completely the legal issues involved."
What that means for the Virginia
student Gavin Grimm's case, Gloucester County School Board v. G.G., is not
entirely clear. Grimm, a transgender
boy, has been denied the use of boys'
school restrooms. In ruling for Grimm
last April, the 4th Circuit court gave
deference to a letter outlining the Education Department's views by James
A. Ferg-Cadima, then an official in
the department's ofﬁce for civil rights.
The document last week speciﬁcally
rescinded that letter.
While there has been speculation
that the Trump administration's
move might motivate the Supreme
Court to ﬁnd a way to avoid deciding
the case, neither party is asking it to
do so at this point. The court on Feb.
24 asked lawyers for the Gloucester
County school board and Grimm
to give their views on how the case
should proceed.
But Joshua A. Block, an American Civil Liberties Union lawyer

representing Grimm, said-prior
to announcment of that request-
that even if the Obama administration's approach is no longer a factor
in his case, the question of whether
Title IX's reference to discrimination
"based on sex" is something the high
court could still rule on.
The ACLU argues that the Gloucester County school board's policy limiting restrooms to people of "corresponding biological genders" violates
the plain text of Title IX. "The board's
discriminatory treatment of Gavin
is explicitly 'on the basis of sex,'" the
brief says.
Meanwhile, the Gloucester County
school board praised the Trump administration's action in a statement
and said it looked forward to telling
the high court "why this development
underscores that the Board's common-sense restroom and locker room
policy is legal under federal law."

16 | EDUCATION WEEK | March 1, 2017 | www.edweek.org

'Close to Total Victory'
Ehlena Fry is now in the 6th grade
in the nearby Manchester, Mich.,
district. She no longer relies on her
service dog, a goldendoodle named
Wonder, at school. But her family is

Pending Lawsuits
While there has been speculation
that the Trump administration's
move might motivate the Supreme
Court to avoid deciding the case, neither party is asking it to do so at this
point.
Meanwhile, at least ﬁve other lawsuits are pending around the country involving transgender issues in
schools. The most prominent one is
Texas v. United States, in which Texas,

seeking damages in their disabilitydiscrimination suit, a remedy they
could still receive after another
round or two of court proceedings.
Michael J. Steinberg, the legal director of the American Civil Liberties
Union of Michigan, which represented
the Fry family, called the decision
"pretty close to total victory," adding,
"We feel very good about winning on
remand" when the case returns to the
lower courts.
The lawyer for the Napoleon district
did not immediately respond to a request for comment.
Chief Justice John G. Roberts Jr.
and Justices Anthony M. Kennedy,
Ruth Bader Ginsburg, Stephen G.
Breyer, and Sonia Sotomayor joined
Kagan's opinion.
Justice Samuel A. Alito Jr. ﬁled an
opinion concurring in part and concurring in the judgment, joined by
Justice Clarence Thomas. Alito said

Steve Helber/AP-File

The U.S. Supreme Court has given
a unanimous-but, for now, partial-
victory to a family that sued a Michigan school district under federal disabilities laws after the district barred
a service dog for a child with cerebral
palsy.
In Fry v. Napoleon Community
Schools (Case No. 15-497), the high
court held that a student or family
suing a school district over a disability-related issue does not always
have to go through, or "exhaust," all
the procedures under the Individuals
with Disabilities Education Act before
going to court.
The court held that IDEA procedures need not be exhausted when
the essence, or "gravamen," of a lawsuit centers on a violation of other
federal disabilities law rather than
the special education law's core guarantee of a "free, appropriate special
education."
"If, in a suit brought under a different statute, the remedy sought is not
for the denial of a FAPE, then exhaustion of the IDEA's procedures is not
required," Justice Elena Kagan wrote
in an opinion for the court.
The case involved Ehlena Fry, a
Michigan student who was denied
the use of her service dog by her former district, the Napoleon Community Schools. Kagan said a federal
appeals court did not undertake the

Erin Irwin/Education Week-File

By Mark Walsh

he objected to some of the "clues" that
Kagan's opinion provided to the lower
courts that might handle similar
cases.
Kagan stressed that the IDEA
guarantees individually tailored
educational services, while the ADA
and Rehabilitation Act "promise
nondiscriminatory access to public
institutions."
She said "one clue" to whether a
suit against a school essentially concerns denial of a free, appropriate
public education or disability-based
discrimination can come by asking
whether the plaintiff could bring
the same claim if the alleged conduct had occurred at, say, a public
library instead of a school.
And, she said, one could ask
whether an adult at a school, such as
an employee or a visitor, could bring
the same grievance.
"When the answer to those questions is yes, a complaint that does not
expressly allege the denial of a FAPE
is also unlikely to be truly about
that subject," Kagan said. "After all,
in those other situations, there is no
FAPE obligation, and yet the same
basic suit could go forward."
"But when the answer is no," she
wrote, "then the complaint probably
does concern a FAPE, even if it does
not explicitly say so; for the FAPE
requirement is all that explains why
only a child in the school setting (not
an adult in that setting or a child in
some other) has a viable claim."
Alito declined to join that portion of
Kagan's opinion, saying in his concurrence that her clues "are likely to confuse and lead courts astray."

Gavin Grimm, a transgender boy shown at his home in Gloucester, Va., in
August 2015, sued his school district for denying him access to the boys'
bathroom. The case will be argued before the Supreme Court this month.

10 other states, two school districts,
and other plaintiffs challenged the
Obama administration's transgender-student guidance, receiving the
nationwide injunction that had put a
pause in its application.
Texas Attorney General Ken Paxton called the Trump administration action "encouraging." With the
change, the Texas case may have little
left to it, legal experts said.
The same is not necessarily the case
in other suits, some involving transgender students seeking facilities access, and others ﬁled by families who
object to school policies that allow
transgender students to use facilities
consistent with their gender identity.

In several cases, rulings have been
based not just on deferring to the
then-prevailing Obama administration guidance, but on Title IX's statutory protections.
Gary S. McCaleb, a lawyer with
the Alliance Defending Freedom, a
Scottsdale, Ariz.-based group that is
involved in three cases that contend
Title IX does not cover gender identity, said the Trump administration's
action will "allow the federal government to extract itself as a defendant
in some of these lawsuits."
"But it is correct that it is more
than just the [Obama administration]
guidance that is at issue," he said, "so
those cases won't all just go away."

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Education Week - March 1, 2017

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