A federal judge declined Wednesday to order the Conway School District to allow a 16-year-old senior to take her service dog to school to help ease her occasional panic attacks.
The girl and her mother, who sued the district in late November under the Americans with Disabilities Act, aren't entitled to a preliminary injunction because they haven't shown that excluding the dog from the school will deprive the girl from participating, deny her benefits or subject her to discrimination, Chief U.S. District Judge Brian Miller said in a written order.
Miller heard arguments Dec. 20 on whether the district should be compelled to allow the girl's dog to accompany her to school at least until the merits of her argument -- that the school's refusal violates federal disability law -- can be determined.
Miller said he had hoped to issue a ruling before the second semester, which begins Tuesday.
The girl and her mother, represented by attorney Thomas Nichols of Disability Rights Arkansas, an independent advocate for people with disabilities, said the miniature Australian shepherd named Dobbie was adopted over the summer for the purpose of being trained to help the girl manage her anxiety attacks, for which she is receiving psychiatric treatment and which constitute a disability.
Nichols said Dobbie underwent training to alert the girl of impending panic attacks, calm her during them and block her from crowds, which sometimes trigger attacks. The attacks are debilitating, and the girl cannot always tell when one is about to happen, he said.
A previous principal told the girl's mother last spring that he didn't anticipate a problem with her taking a service dog to school as long as she had approval from a committee that decides how to ensure that students with disabilities receive appropriate accommodations, Nichols said. But the committee denied the request in the fall, and the new principal supported the committee's decision.
Miller said that while the Americans with Disabilities Act requires the district to make "reasonable modifications" to its policies to avoid disability discrimination, it "does not require the district to provide the specific accommodation requested by" the girl.
He said the district need only provide "an accommodation that is reasonable," but requiring the district to permit the girl to take the dog to school with her "is unreasonable."
"First, a dog's presence in the classroom would be distracting to other students, even if the dog is well-behaved," the judge wrote. "For students, faculty and staff with allergies, a dog could be truly disruptive. This would be compounded if multiple students were permitted to bring dogs to school."
Jay Bequette, attorney for the school district, said during the hearing that at least one student in the girl's classes is allergic to dogs.
Miller also noted that according to testimony, the girl's anxiety attacks happen "relatively infrequently."
"While they detract from [her] schooling, permitting her to have a dog with her every minute of every school day is not necessary when [she] has other means of controlling the frequency and severity of her attacks," he said.
He was referring to other accommodations the district has offered, including allowing the girl to sit under her desk when experiencing an attack or to leave class early to avoid crowds. In light of those and other accommodations offered, some of which were refused, it's unclear that the dog's presence "would make a significant impact on [the girl's] educational and social experiences," Miller said.
The judge noted that the girl has done so well in school that she skipped her junior year and plans to graduate in May, a year ahead of time. She makes excellent grades, is in the school band and attends football games.
Miller said it's proper to defer to educators when making determinations affecting the school environment, noting, "The district is staffed by experienced educators and administrators who are responsible for educating many students in addition to [the girl]. Its determination that bringing Dobbie to school is unreasonable is one factor weighing against permitting it."
Nichols couldn't be reached for comment Wednesday afternoon after the order was issued, but he said in the hearing last month that she was considering finishing her last semester of high school online if she couldn't have Dobbie by her side in the classroom. The girl prefers to be on campus, however, Nichols said, noting that she enjoys being around other students and performing with the school band, which are part of the school experience.
Miller dismissed Bequette's argument that the girl was required to exhaust administrative remedies before filing a federal lawsuit. The judge noted that because the girl's mother isn't trying to enforce the girl's right to a "free, appropriate public education" as defined by the Individuals with Disabilities Education Act, known as the IDEA, she didn't have to comply with the IDEA's exhaustion requirement.
The Americans with Disabilities Act prohibits discrimination against a "qualified individual with a disability" or excluding such a person from a public entity's "services, programs and activities" because of a disability.
One of the regulations implementing the Americans with Disabilities Act concerns service animals, which Miller defined as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability."
But a service animal isn't always a "reasonable" accommodation under the Americans with Disabilities Act, he said.
A trial on the merits of the Americans with Disabilities Act claim has been scheduled for Dec. 2, 2019, although the girl will have graduated by then, and it isn't known if she and her mother will continue to pursue the case.
Metro on 01/03/2019