U.S. Supreme Court Ruled in Favor of Ehlena Fry and Wonder the Service Dog's, Upholding The Rights of Students with Disabilities

Ehlena Fry and her service dog, Wonder, visit the Supreme Court. photo: An-Li Herring/NPR

Feb. 22, 2017 - The U.S. Supreme Court ruled in a very important case for students with disabilities, Fry v. Napoleon Community Schools (see summary at this link). The case involved a girl with cerebral palsy named Ehlena Fry and her service dog Wonder. Ehlena's school would not allow Wonder to accompany her to classes. Ehlena's family filed suit based on the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 to allow Wonder to go with Ehlena to school, and for monetary damages. Many well known disability rights advocates filed amicus ("friend of the court") briefs in support of Ehlena, and it was argued by disability rights attorney Sam Bagenstos, who is also known for his leadership on Olmstead rights. The Supreme Court decided in favor of Ehlena and Wonder; this is important in upholding the rights of students with disabilities under the ADA and the Rehab Act, not just the Individuals with Disabilities Education Act (IDEA).

Ehlena Fry and her goldendoodle, Wonder, photographed in 2015. The U.S. Supreme Court will consider whether Fry's family can seek damages from a school district that balked at the service dog's presence in the classroom. (Michigan ACLU)

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USA TODAY article FEB 22, 2017

article by Richard Wolf

WASHINGTON — The proverb "every dog has its day" came true at the Supreme Court on Wednesday for the family of a 13-year-old girl with cerebral palsy and her goldendoodle, Wonder.

In a case that was closely watched by the disability community, the high court ruled unanimously that Ehlena Fry's family can pursue a lawsuit against her former public school district for denying access to her service dog.

Lower courts had ruled that the family first had to exhaust all administrative remedies under the Individuals with Disabilities Education Act before seeking damages under the Americans with Disabilities Act. But the justices ruled that if the family did not pursue a solution under IDEA, it can sidestep that process in search of its real goal: providing Ehlena with greater physical and emotional independence.

The 8-0 ruling was delivered by Justice Elena Kagan. While it leans in the Fry family's direction, it leaves open the possibility that a lower federal court still could require exhaustion of the IDEA administrative process, depending on further fact-finding.

As often happens as court proceedings drag on, Ehlena was moved to a different Michigan elementary school that welcomed Wonder — now 10 and retired as a service dog — and even put the pooch's mug shot in the yearbook. Over the years, the lawsuit against the Napoleon Community Schools became more about principle than keeping the girl and her goldendoodle together.

A number of justices had seemed sympathetic to the Frys' argument during oral arguments in October. Forcing them to negotiate with school officials over Ehlena's educational program seemed unfair, they said, when her education wasn't the problem. Rather, the Frys wanted Wonder — not a human aide — to perform such tasks as helping Ehlena in the bathroom.

Chief Justice John Roberts and Justice Stephen Breyer expressed concern that a decision in the Frys' favor could allow families of children with disabilities to gain an advantage over school districts by threatening ADA lawsuits while negotiating their educational programs. But Roberts acknowledged that requiring the Frys to go through the IDEA process when their concerns were not about education was "a kind of charade."

The case was the first of two heard this term that could influence how schools handle children with disabilities. In January, the justices also appeared to side with the family of a Colorado student with autism seeking a more substantial education under the IDEA law. That case, likely to be decided this spring, could have a broader impact on thousands of students with disabilities.

http://www.usatoday.com/story/news/politics/2017/02/22/supreme-court-disabled-girl-wonder-service-dog/98214948/

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RELATED POSTS:

• U.S. Supreme Court takes up case of girl with cerebral palsy 'service dog'
• Service Dog Visits Supreme Court In Case For The Right To Have Service Animals In Schools

Neil Gorsuch Nominee for Supreme Court Has a Troubling History When Ruling on Disability Rights Cases

Feb. 3, 2017 -- On Tuesday night, President Trump nominated Neil Gorsuch, a federal appellate judge, as his nominee to replace the late Antonin Scalia to the Supreme Court. As journalists and activists scour through Gorsuch’s judicial record, they would do well to pay attention to his decisions on disability rights.

article by Claudia Center, Senior Staff Attorney, ACLU 
Two cases stand out during Judge Gorsuch’s time at Tenth Circuit Court of Appeals.

Assistant Professor Grace Hwang worked at Kansas State University – with great success – for 15 years. After a cancer diagnosis, she requested and received a six-month leave of absence covering the fall 2009 semester while she recovered from a bone marrow transplant. As she was preparing to return to teaching in January, the campus erupted in a flu epidemic. Because a flu infection would have been dangerous, given her compromised immune system, Professor Hwang asked for further short leave, during which she could have worked from home.

The university denied her request, and Hwang sued.

Under established disability rights laws, a request for leave due to a disability must be evaluated on a case-by-case basis to decide whether the request would present an undue hardship to the employer. This is a factual determination. Yet, before any evidence could be presented in the case on whether such an accommodation might present a problem for KSU — a federally funded, multi-million-dollar employer — Judge Gorsuch ruled that Professor Grace Hwang’s request for an additional leave of absence was simply unreasonable.

In his ruling, Judge Gorsuch asserted that “showing up” was an essential job function and opined that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” But this was an error of both fact and law. Of course, it is important that an individual report to work. But Grace Hwang had demonstrated her ability to “show up” for 15 years, and she was even able to telecommute during the flu epidemic. There was no question that she could report to work on campus and that she would be able to do so again. What was at issue was whether the university should allow her a short additional leave as a reasonable accommodation to enable her to return to her full duties.

Judge Gorsuch’s ruling contravened Equal Employment Opportunity Commission guidance, every other circuit decision on the issue, and reasoning from the Supreme Court in U.S. Airways, Inc v Barnett. In Barnett, the U.S. Supreme Court held that a reasonable accommodation may require the modification of a neutral employer rule, even if this functioned as a “preference” for the disabled employee. If Gorsuch followed Barnett’s reasoning in Hwang, the only thing required of the university would have been allowing the professor to work from home for a limited time.

A safety net it is not.

In a second disability rights case, an impartial hearing officer, an administrative law judge, and a federal district court judge all agreed that a young autistic boy, Luke, needed placement in a residential school program due to his total lack of progress in “generalizing” skills — applying skills learned at school to other environments. Judge Gorsuch wrote the opinion reversing. He found that because Luke was making “some progress” toward his education goals in the public school — even though it was undisputed there was no progress outside of school –the school district had met its obligations under the Individuals with Disabilities Education Act (IDEA). But Congress had made it clear that the IDEA should help students make progress toward independent living. Generally, not just in school. The narrow and outdated standard used by Judge Gorsuch is now under review in the U.S. Supreme Court.

One of the primary principles underlying disability rights laws is the idea that there will be times when we need to level the playing field to give people with disabilities an equal opportunity — an opportunity to get an education, to get or keep a job, to be productive members of society. The Americans with Disabilities Act and other disability rights laws recognize financial, practical, and administrative burdens. But the laws also emphasize the individual nature of each situation. An accommodation that works for one person might not work for another. Similarly, what would be required for one employer might be a hardship for another. The court needs to look at the facts, not draw arbitrary, bright-line rules.

Judge Gorsuch rulings on the disability cases in front of him thus far raise important questions about his recognition of the rights of individuals with disabilities, and his willingness to ensure that we receive individualized justice.

https://www.aclu.org/blog/speak-freely/supreme-court-nominee-neil-gorsuch-has-troubling-history-when-ruling-disability

For more from the ACLU, visit: https://www.aclu.org/

Supreme Court: Police immune over arrest of mentally ill woman

WASHINGTON (AP) — By SAM HANANEL | May 18, 2015 --The Supreme Court ruled Monday that police are immune from a lawsuit arising from the arrest and shooting of a mentally ill woman in San Francisco.

But the justices left undecided the question of whether police must take special precautions when arresting armed and violent people suffering from mental illness.

The case involved a 2008 incident in which two police officers forced their way into Teresa Sheehan's room at a group home and shot her five times after she came at them with a knife. Sheehan claimed the officers should have used less confrontational tactics because they are covered by the Americans with Disabilities Act. That law requires "reasonable accommodations" for people with mental illnesses.

Writing for the court, Justice Samuel Alito said the justices wouldn't take up the disability rights issue because it hadn't been fully considered by lower courts.

Qualified immunity protects public officials from being sued for damages unless the official violated a constitutional right that was clearly established at the time of the misconduct.

Six justices agreed that the police officers could not be sued in this case. Justices Antonin Scalia and Elena Kagan wrote separately to say they would have dismissed the case entirely. Justice Stephen Breyer took no part in the case, as his brother was the federal judge who heard the case.

The case had attracted attention from mental health advocates who said that failing to take account of a suspect's disability often results in unnecessary shootings by police.

Law enforcement groups also weighed in, saying a ruling in Sheehan's favor could undermine police tactics, place officers and bystanders at risk and open them to additional liability.

The ADA generally requires public officials to make "reasonable accommodations" to avoid discriminating against people with disabilities. But lower courts have split on how the law should apply to police conduct when public safety is at risk.

The Supreme Court initially took up the case because the city argued that the disability act does not apply when police face armed and dangerous suspects. But then attorneys for the city changed their argument to say that Sheehan was not "qualified" for an accommodation under the law. Alito said it would not be "prudent" to decide a question that hadn't been fully considered by lower courts.

In Sheehan's case, her social worker called police for help in restraining her so she could be taken to a hospital for treatment. Officers entered her room with a key, but Sheehan threatened them with a knife, so they closed the door and called for backup. But they said they weren't sure whether Sheehan had a way to escape, and were concerned that she might have other weapons inside.

The officers then forced their way in and tried to subdue her with pepper spray. But she continued to come toward them with the knife and was shot five times.

A federal district court sided with the police, ruling that it would be unreasonable to ask officers trying to detain a violent, mentally disabled person to comply with the ADA before protecting themselves and others. But the 9th U.S. Circuit Court of Appeals said a jury should decide whether it was reasonable for the officers to use less confrontational tactics.