Posted Apr 01, 2010 07:30 am CDT
Kaleb has autism. And Chewey, a yellow Lab, trained for nearly two years and learned 30 commands dealing with how to interact with autistic kids in a family setting and in school, says Margie Wakelin, an attorney for Chicago-based civil rights group Equip for Equality.
Among Chewey’s most important tasks is keeping Kaleb from running away, “which he did before when he became over-stimulated,” says Wakelin. Now Chewey is tethered to Kaleb’s belt loop, she says.
Chewey’s presence also has helped coax Kaleb to come to school in the first place. Before, she says, “his mother would pick him up and drag him. An aide would have to help put on his shoes. Now, he’s had no difficulty whatsoever.”
The Villa Grove school district is seeking to keep aide dogs like Chewey out of the classroom. While visually impaired children can have guide dogs, they say, Illinois law is vague about aide dogs for kids with other impairments.
“We don’t feel that the law is clear,” says superintendent Steven Poznic, adding that the district is concerned about both safety issues and classroom distraction. “It’s potentially disruptive for us. … We don’t feel that it was necessary for the student to be successful.”
In a case of first impression in Illinois, the Douglas County Circuit Court ruled in favor of Kaleb and his family last November. The school district has appealed the case, and oral arguments are expected in May or June, says the school district’s attorney, Brandon Wright.
Chewey does not fit the definition of a service animal, Wright says, because Kaleb is incapable of commanding him to perform any tasks and the presence of an aide is required to control the animal.
Wright says those functions provide comfort, not service. “It’s ‘I feel better because I have my pet with me,’ ” he says, adding that school staff testified that they saw no particular benefits from the dog’s presence.
Wakelin insists there is nothing in the state school code that requires the child to be able to command the animal, although that is the goal of Kaleb’s parents. A similar case is being litigated in a school district in southern Illinois.
“There are a lot of people watching these cases to see how the definition of ‘service animal’ is affected,” Wakelin says.
“There has been sort of an upsurge in those cases,” says Kristin Hildebrant, supervising attorney with the Ohio Legal Rights Service in Columbus. “People are getting service dogs at younger ages. We’re finding out that they can be appropriate and beneficial for younger people.”
Long associated with the visually impaired, dogs are also trained to help people cope with other disabilities, such as hearing impairment, autism and emotional challenges.
When schoolchildren seek to bring dogs into the classroom, sometimes they’re not as easily accepted, experts say, resulting in administrative hearings or even legal action.
Cases have been brought under the federal Americans with Disabilities Act and the Individuals with Disabilities Education Act as well as comparable state laws.
Wakelin brought the Drew case based on school code language, derived from the ADA, that says “an animal that’s individually trained to perform tasks for a student with disabilities shall be permitted in all school functions,” she says. Wright explains the initial ruling by saying that one-sentence summary proved “hard for the judge to interpret.”
School districts that object to the presence of dogs in their classrooms tend to make the same arguments, Hildebrant says. Allergic children might have reactions to their dander, dogs can carry health hazards like fleas or ticks, they could cause a danger to students if they get out of control, or they can be a distraction due to their barking—or just their presence.
“The issue comes up when it’s never been done in a district,” says Hildebrant, who has handled cases on behalf of children with issues such as physical disabilities and diabetes. “In most cases, the district has what they consider to be legitimate concerns. They need to feel comfortable there won’t be issues around the dog.”
The other Illinois case involves a prekindergarten student named Carter Kalbfleisch, who lives within the boundaries of a school district near St. Louis but attends a center for autistic children 30 to 45 minutes away by car.
In December an Illinois appellate court’s temporary injunction upheld a lower court’s ruling to allow Carter to bring his service dog, Corbin, with him to public elementary school. Carter will continue to attend the Illinois Center for Autism the remainder of this school year.
“Their main concern and their goal is they would prefer to have him educated in their home district,” says Jeremy Thompson of Columbia, Ill., who is rep resenting Carter’s parents.
Like the Drew family, the Kalbfleisches argue that the service dog “refocuses and redirects [the boy’s] attention to the task at hand,” that Carter “had a history of bolting and running off without being aware of the surroundings,” and that, overall, “he’s shown a lot of improvement,” says Thompson, who brought the case under the same state education statute that Wakelin did.
The Kalbfleisches testified that Corbin has been trained to understand 70 commands and receive specific instructions on how to respond to Carter’s issues, and that the dog is a Bouvier breed, considered to be hypo allergenic because they have hair rather than fur.
The school district has argued that Corbin is not a service dog because Carter does not command him personally, and that “the harm the other children are exposed to outweighs the benefits to Carter,” says Collinsville attorney Christi Flaherty, who represents the district. “We have other students who are severely allergic. We have a child who has a respiratory disease.” Plus, the district fears distractions and potential danger from having an animal in the classroom.
Elsewhere, the East Meadow school district on New York’s Long Island denied permission for high school freshman John Cave Jr., who is hearing im paired, to bring a service dog named Simba with him to high school.
The family brought a federal complaint that referenced the ADA, the Rehabilitation Act of 1973 and several state statutes. In February 2007, the U.S. District Court for the Eastern District of New York denied the motion for a preliminary injunction.
The case is still pending in Nassau County Supreme Court, although the family has moved and Cave won’t be affected by the result, says attorney Paul Margiotta of Bay Shore, N.Y. He plans to see the case through because “there’s going to be another kid, I’m sure.”
Margiotta says the family argued that the dog alerted Cave to everything from people calling his name to fire alarms, and that without the ability to be together for the entire school day, the dog was forgetting its training (Simba was eventually returned to be retrained).
The school district, which did not return phone calls for comment, argued during the 2007 proceeding that Cave did not need the dog for educational purposes, and that the risks to other students outweighed the potential benefits.
A 2001 case involving an emotionally disabled child in southern Ohio was settled through an administrative due process hearing. The Ohio Legal Rights Service brought the case under the federal Individuals with Disabilities Education Act, says Hildebrant, who could not reveal the child’s name. The hearing officer ruled in the family’s favor, saying the child needed the dog to be able to leave her mother and transition to school.
Gallia County Superintendent Charla C. Evans, who began her position after the previous superintendent had denied permission for the dog, said she advised the school board not to fight the family of the eighth-grader. Both sides agree the child continued to bring the dog to school sporadically for the remainder of the 2001-02 school year and then did not feel the need afterward.
“It sort of became a moot point,” Evans says. “I’m not one to draw a line in the sand. … We set up guidelines where the child was responsible for cleaning up after the animal, that sort of thing.” She adds that the district had brought up concerns about allergies, distractions and safety, but “there didn’t prove to be any of that.”
That’s very typical, Hildebrant says. “My universal experience has been that once the dog gets into the school, it’s been successful,” she says. “It has not been problematic for the school environment because these dogs are well-trained.”