thanks one four dash one one three seven stacey fry at all versus napoleon community schools at all or argument fifteen minutes per side mr herman for the appellants morning in may please the court james herman on fry's pediatrician wrote a prescription for her to use a service dog to his sister with the activities of daily living this prescription occurred before mr fry ever registered for classes who the napoleon community schools in shortly after the prescription was written mr fry and his friend met with the administrators the israel ability as were at the elementary school informing them of the intended to have the service dog accompany their daughter to kindergarten which was started in the two thousand and nine two thousand and ten school year and administrators indicated they would have no issue with that dog accompanying her based upon their representation the frys purchased a service animal for their daughter a goldendoodle named wonder who is trained to assist daughter in the activities of daily living taking honor and putting off her coat opening doors turning on and turning off lights and helping her transfer from her wheelchair to a toilet when she needed assistance in doing so when the parents went to the school to request that wander be able to accompany their daughter was that a request to modify the i can at that time you're out of the dark the daughter had not even registered for schools and there was no e p a in place they simply had gone to the school as a courtesy to inform and this motion for judgment on the pleadings and ok i'll see so i can answer that question ok after attending the training with wonder after purchasing the dog the fries returned to the school and were informed in october of two thousand and nine that despite the prior representation to the contrary the dog would not be allowed to attend the school with their daughter that representation took place in october two thousand and nine not as part of any type of an i e p process but simply as an interaction with the principal of the school according to the allegations in the complaint however there was an issue discussed in january of two thousand and ten and i e p called by the school where they did raise the issue of whether the service dog should be able to attend the school and at that i e p the school denied that accommodation certainly could have been done through the ip process your honor may have been able to be done to the i e pretty promising could have been done through that process it could have been done but it isn't necessary that it need to be done that way under the american disabilities act or the rehabilitation act and well that that's sort of my question there are two ways to look at this the the dog one way would be to say it's like having a an assistant in the room with her which ultimately i'm sure she did have to do under the ip she had an assistant assigned to her in class the other way to and the dog would might fall into that category the other way to look at it is that the dog is like a walker or a cane if this child were able to get by with only that and that it's i don't think you'd say that  child has to come into had to have an a walker specified in an ip in order to bring one to to school in and that is so so i put i'm interested in is what what rules should nothing more than would be something the school is required to extend to a visiting member of the general public a parent attending for parent teacher conferences who would have the right to have a wheelchair if they needed a wheelchair to attend their child's conferences or need to have a service dog in order to accommodate them a visual impairment under those circumstances the rehabilitation act in the american with disabilities act would say that simply a reasonable accommodation to a person in a place of public accommodation in the school was required to give it misra should be have no less right simply because she was a student to that a club did you ever did anybody ever ask the school what they would do about a seeing eye dog for example the school actually had a policy on seeing eye dogs and that was something that the department of education looked at when  investigated this matter and found their policy was inadequate because it simply dealt with seeing eye dogs they didn't deal with services but did it allow saying i don't exist would but not service dogs he didn't talk about service dog and only talked about seeing eye brett record by any chance i believe that that's part of the exhibit a to our complaint which is the the findings of the civil rights investigation from the united states department of education finding if napoleon community schools had violated by the school was the fact that the dog might be a distraction the fact that there might be allergies from faculty and or students and they raise sort of a litany of other concerns is part of the necessary to contribute to the educational program that was being provided to alina fry and if the units are that is no if it was simply an assisted device like a cane or like a walker or like a wheelchair there is no implication of the idea and i understand that  the educational process is more than just the instructional process for the child but what from your perspective how does this this particular service  dog the education process that brought education objectives of the child i know that upon the wreck of the dog would help the child balance and get to and from certain places but bring that i'm of the educational function allows her to get through a door without having to x for assistance in doing so it allows you to put a coat on and take off her coat without asking someone for help in doing so that's part of learning to get along in india society will be a challenge that ms fry faces for the entirety of her life and she shouldn't be denied the access of a service animal to do that but what you're saying is that that however someone would see this is relating to an i it's not it doesn't relate to  faith correct it's not an educational to i'm getting that right that's right it's not an educational tool it's a tool of daily living from this fraud just as your wheelchair or her walker would be but they've been in a lot of these that's what they're concerned about providing well bill it behooves learning how to how to get along in society and how how to certainly how to interact and how to  in how to express yourself and all of those things which is just seems to me like the kinds of things we see in these cases that deal with whether it's an appropriate faith whatever that stands for free and proper public republican cation seems like that's kind of at the heart of whether she's getting a free and appropriate public education if if one side says you can you can get you can learn this stuff without having the dog in your side in the other side says you can't learn this stuff unless you have the dog at your side as basically what it comes down to write it don't know that's a kind just seems like the kind of issue that these these due process hearings and everything that are done under the address all the time it's not that i don't believe that it is in all instances not because it seems like it is i think that there's a couple of issues the first is that in this particular school administrators came in and testified parent came in and testified about the impact of the dog would have upon the day to day living in the necessity to but if it's something where exhaustion is required it would make sense to try the case before you determine whether you know under the there's a there's a fairly quick resolution process under i d e a so the law why wouldn't it be a better approach to give the state educational agency the initial opportunity to sort of resolve this problem because i understand you all didn't go to that agency why should they have been given the first crack to try to resolve this my time is up may have matured if they please answer the question yes  answer is because they shouldn't have to simply because you shouldn't have to check her rights at the door as a qualified individual to disability simply because she's also a student the they could have gone through that process potentially if they felt that it was necessary but the rights we're talking about here go beyond those of the rights of a student seeking a free and appropriate public education alina frye had rights and has rights as a member of society as a qualified into with the decision individuate the disability to access to a place of public accommodation and she shouldn't have to go through an additional hoop simply because she doesn't have to explicitly say that though it only says that it has that you know with these these are all independent except when you're talking about exhaustion and when the when and when there's overlap i mean exactly what the scope of the overlap is what we're here to discuss but what you just said makes it sound like that statute isn't in the books i mean you could say well any time that they have to exhaust their checking their rights at the door because of it not for this provision they would have had to exhaust but the pro right it says you have to exhaust if it's if it meets that standard of the statute if it's seeking the same relief your honor when they were not seeking the same early fear we're not seeking a free an appropriate public education from this friday no one is denying this right received  an appropriate public education when she was at the school but you're saying that there really if she seek it is really incident two or is a part of that whole educational process helping her to navigate society deal with in a personal issues  ether that's part of that overall education umbrella the fact that as part of for learning to be a member of society around it doesn't mean as part of an educational process it would require input from a professional educator and that's what the a p process is designed to do and so i think that there's a to say you interpret it broadly for some purpose if i'm very narrowly for others i think that's correct or rather i think that he defined differently depending upon the type of accommodation being sought thank you thank you this case those involved the rights of a special education students seeking educational accommodations under the idea now education under the idea as your honour's have pointed out means something different than just a general right to academics it is about learning life skills as providing really the crux of the idea that wait a minute the problem here is she's not trying to learn how to do that she wants the dog with her so she can do that this is a learning to be a member of society and all of that she might fall down if she doesn't have the dog litter so the dog really is more like a cane or a wheelchair then it is part of her educational now she'll also learn in school how to be a member of society and how to communicate and all those other things too but in the main time she needs the dog so that she'll be able to do that it's just like that what what how is this different from the seeing eye dog well if you're talking about incidents where the child needs a dog to learn assistance in toileting and turning on lights i think that is not the learner assistance and it actually assist this isn't a learning process that with this dog the dog has already been taught how to help this child the child well we don't have any record evidence of what the child's actual capabilities are for the purposes of this motion but the poor point of the dog though is to help with independent learning skills and that i learned do it there's a difference between learning independent skills and actually going to the potty if i can be so blind through your honor and this dog will help or go to the park so this dog is like a a physical assistance of some kind not not not an educational process your honor i'd have to respectfully disagree on that point because one there is no facts about what are polluting capabilities are at the time i have young children and it's been a long process teaching them how to properly toilet themselves and it is how do you distinguish the cane or do you distinguish the cane well i do distinguish the cane because when you're talking about the assistance of a dog in moving around and observing your environment and helping were and how to be  independent individual actually i don't think it is much different than again in some respects i think whether or not you had a cane would have to exhaust through the ip process if it's going to help the stew if it's a related service or tool to help the student thing i dog is like a crutch a student can't just get around without assistance and the c and i dog is is that assistant it's that cane it's that wheelchair and nobody goes to pieces when the seeing eye dog comes to school and you know a lot of times those are german shepherds and labs they based on my personal experience shed like crazy we also have a goldendoodle in the family who doesn't shed at all so all this business about cave and people being allergic to the dog and everything goes out the window if it's a seeing eye dog right there's a policy that says you can bring your seeing eye dog to school it seems to me that what's missing is they haven't updated that policy to say a service dog qualifies to that's the only difference here well the policies weren't really an issue at the point of the motion to dismiss well i know that's disturbing me too frankly but the point of the administrative exotic due process hearing that a lot of this stuff could have been addressed at that time we were talking about plaintiff counsel saying that the rights of the student are limited by this requirement of the exhaust i think that there expanded it well but what if what if there are a lot of places where you have to jump through hoops unless you can show that it's futile when that going to be pretty futile here based on what we do know that in the record that's in the complaint about the they made the decision to exclude the dog even before the i was completely in place i mean they first said yes and then they said no but what would happen if they had exhausted how would we be anywhere other than where we are now oh but they would go to the plaintiffs would fall a complaint with the department of education in michigan there would be a hearing officer assigned to it the hearing would be conducted i think it's within sixty or forty five or sixty days the hearing officer takes the testimony of everyone involved and could have said to the school district you have to do this yes and they could have force compliance and if the school didn't comply get now though because it's retrospective right and correct the statue of the taishan is on that is passed but that's the proper avenue for this the student could have had all of this resolved i mean this we're talking january of two thousand and ten all this could have been resolved by march or april of two thousand and ten if the school district did not comply with what that hearing officer had said at that time the services this service animal is required to help the student throughout the school day it aids in the educational process of the student you have to allow the service dog into the building without any kind of restriction the school would have to comply with that if the girl that she al to also in the in your district school district or is that another i think that she had transferred to washtenaw intermediate school district this is jackson intermediate school district in the immediate school district but she the constituent district was  napoleon community school so isn't a different place some live in one county and can go to the other in michigan yes it's called the schools of choice program i believe she was county school of choice progress you know for special education she was not even home school student in and jackson i s d i believe and she did have an ip before entering that school district it was just it was prepared in a different school but that's the whole point though and it's an interesting question do you know i know this is off the record but i'm just interested in this did the school where she ended up include the dog in her eye pay or did they just say sure bring the dog that's ok i'm not sure the answer to that i know that there was a change in the water service animal as defined i think that went into effect march fifteenth two thousand and eleven a year ago and did that help i believe it changed things i think that's why the school district our school district ultimately said you can bring the animal to school the plaintiff decided they were going to come back to the school well was that you can bring the animal to school but that dog has to sit in the back of the room you know i believe it's hard to  all done on a motion without a record yeah correct but it's a good question i'm not sure but the record innocent and ministry of process typically is pretty thorough i mean these are absolutely that's the whole point of the having the administrative hearing is because evan same have been on these are acts as you hear these cases that only deal in the topic of special education they're so well versed in this one it's finite little area are their expertise and their fact finding provides an invaluable resource to the parties to a case the court everyone involved still that's really why that's required and going to the issue of faith because i know it was brought up i think at the most basic level you have a special education student is requiring some kind of an assistance to go to school and they have an eye if you see if if the school says that we're disagreeing with your request mean that we need this accommodation and the net effect is that is the student saying i can't go to your school then which basically happened here because the student ended up going home schooling then they're not being provided with a free appropriate public education they're not allowed access to the building they don't have teaching they don't have a curriculum those students or they're not in they're also not being provided the related services required by the i d f so i think it is an issue of faith in addition to an education well yeah but if she had showed up and said i need to i need to attend in a wheelchair and i can't come in and i can't get in here without a wheelchair and there are steps everywhere you're too young to remember when when that was the case in schools and when special education students didn't exist they just stayed at and the school district said oh gosh if we have to put are a problem wouldn't well it would depend on the nature of the disability requiring the wheelchair if it's a student the physical disability who's disability does not impact their ability to learn then they wouldn't even have an ip they wouldn't fall and just because in this case there is an i p the takes over in effect and yes you know because of that provision in the in the i p having to do with the did it allows that student that extra layer of protection where they can go immediately to the state and not have to spend years in litigation they can go to the partner of education and have their hearing within a matter of days i mean you're the accounting days as opposed to months and years to have something like this resolved and the idea i think that's the distinguishing factor is the idea says that if you can if there is relief it's also available under the idea you must exhaust your ministry of remedies first and the six circuit is interpret that also available to mean if you're relieved to be redressed by well but here's where we're left if this is more like a cane than it is like an aid to the student a person she wouldn't have had they were her parents would not have had to go through the i d e a exhaustion process to  get her into school with a cane even though she had and i because she had other learning disabilities or problems that's corrected and well i don't i don't know if i agree with that if the student has  an even with the instance of a cane and that's a service that's allowed for in the ip lot of times when you're talking about a young child you're going to have adult assistance as well which would be the case here because the adult was helping with the dog do apply and that language comes from this s c versus grant county board of education case that was cited and if you look at the opinion the court isn't adopting that is the standard simply cites it in passing as a standard the ninth circuit has adopted and doesn't say that that's the standard in this particular court it doesn't describe what the standard is the court should adopt or that it isn't going to go on to adopt in that particular case but it didn't quite such a high standard of the ninth circuit had that standard not a reasonable standard for the circuit  i think of the cork was on to it to address that in footnote eleven of that opinion your honor and in footnote eleven they talk about that if the claim had been for damages to compensate for discrimination in violation of the rehabilitation act it's questionable whether relief would be available under the i d e a and exhaustion would not be required and then cite to the court's prior opinion in gene versus had a way gina versus had always at three thirty f thirty seven fifty eight in that case the court held that when a planet has a claim for general damages not compensatory damages for failure to receive a free appropriate public education so the court held that if you're not trying to say you should pay for me to get education somewhere else but instead of trying to get compensation for the injuries that were inflicted upon you because you weren't allowed your rights under the american disabilities act or the rehabilitation act under those circumstances those general damages cases like this one is there is no requirement to exhaust and so you need to trace through that case you can't just rely on the se versus grant board of education case you have to look at the prior gene opinion as well which creates the parameters that we're dealing with here and under those parameters those are exactly the types of damages that we're seeking we're not seeking compensation for the fries as a result of having to transfer to another school district that's not what we're looking for we're looking for compensation for the violation of misrata civil rights took place when she was denied access to the school with a service animal  distinct lines of of damages and the distinction of the damages that are being sought is what creates the issue here that says we don't have to exhaust under the gene opinion and most of the questions thank you thank you very much our human case will be submitted please call the next case