Judge hears sides on taking dog to Arkansas school; animal eases girl’s panic, lawsuit says

A Conway School District senior is hoping that by Jan. 8, the start of the second semester, her miniature Australian shepherd dog, Dobbie, will be accompanying her to class. But that depends on how a federal judge rules in a lawsuit filed by the girl's mother under the Americans with Disabilities Act.

On Wednesday, Chief U.S. District Judge Brian Miller heard about an hour's worth of arguments from attorneys for Disability Rights Arkansas, which says the law requires the district to accommodate the girl's need for the specially trained dog, and the district, which says the situation falls under a different law.

The district says that under Section 504 of the Rehabilitation Act of 1973, a committee of educators and school counselors decides how the district will accommodate the special needs of disabled students. In this case, the committee decided, despite a note from the girl's psychiatrist, that she didn't appear to have a severe enough problem to justify allowing a dog inside the school where it could disrupt classes and trigger allergies.

The district also contends that the girl and her mother must first exhaust her administrative remedies, which involve appealing the committee's decision, before seeking relief in federal court.

Thomas Nichols, an attorney for Disability Rights Arkansas, a federally funded nonprofit agency that provides advocacy services for the disabled, is seeking a preliminary injunction that would force the district to allow the 16-year-old girl to return to school with Dobbie, who was adopted as a puppy over the summer for the purpose of being trained to help her overcome severe panic attacks.

Nichols said the panic attacks caused the girl to miss 44 days of school during the previous spring semester, and sometimes are so severe that they prompt her to crawl under her desk.

In arguments Wednesday in Miller's Little Rock courtroom, attorney Jay Bequette noted that the district has come up with other accommodations to help the girl function normally in school despite her anxiety diagnosis. For example, he said, she is allowed to leave class early to avoid crowds, which her mother said can trigger her attacks, and she is also allowed to go to the school nurse or counselor, or step into the hallway, at the onset of an anxiety attack. He said those accommodations were designed by the girl's Section 504 committee, which the Individual with Disabilities Education Act requires for all disabled students to ensure they receive a free and public education.

But Nichols said the girl isn't seeking relief under that statute, and "to the extent that they provide other accommodations ... a public entity can't require a disabled person to accept an accommodation the person chooses not to accept."

As an example, he said that if a school district offered to carry a student into class every day instead of letting the student use a wheelchair, but the student preferred to use a wheelchair, the wheelchair must be provided.

Nichols said that in 2011, the U.S. Department of Justice enacted new regulations to clarify rules on the use of service animals, and the language requires schools to modify policies to allow service animals. The rules also provide exceptions allowing school districts to expel a service animal if, for instance, the handler can't control it, or the animal isn't housebroken.

Although the district has said the girl is an exceptional student -- she has been allowed to skip a grade and graduate early -- and thus clearly doesn't need another special accommodation, Nichols said her success "should not prevent her from going to class with her peers," which is part of the school experience.

With her service dog at her side, she wouldn't have to crawl under her desk and be different from her peers, he argued.

The dog alerts the girl before a panic attack by nudging her, prompting her to begin breathing exercises, and when an attack can't be prevented, "blankets" her, providing physical pressure, to reduce the attack's severity, according to the lawsuit.

The girl's mother asked the school principal last spring if a service dog would be allowed and the principal told her he didn't see a problem, as long as it was approved by the 504 committee, according to the suit. But that principal is no longer at the school, and the new principal isn't in favor of the idea.

Nichols argued, "The only reason [the girl's mother] even requested a 504 plan was that she was told it was necessary," when she really didn't even have to ask the 504 committee to weigh in on the matter.

The girl, who attended the hearing with her mother, is now looking into attending her final semester online if she can't take Dobbie to school, Nichols told the judge, but he said she really doesn't want to lose time with fellow students. The girl is a member of the school band and doesn't want to miss out on those performances, he said.

"There's a big difference between a service animal and a comfort animal," Bequette argued, noting that a service animal that is required for someone who otherwise cannot fully access services, such as a blind or severely autistic person, "is not the situation we're talking about here."

He also said, "We know for a fact that there is a student in one of her classes who is allergic to dogs, and that student's schedule will have to be changed" if the dog is allowed.

Miller said he will issue a ruling on the injunction request as quickly as possible.

Metro on 12/20/2018

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