WILMINGTON — Federal law requires public schools to allow service animals to assist students with disabilities. But according to the mother of an elementary school student, the New Hanover County School district denied and then delayed access for her daughter’s service dog.
Then, after she filed a local formal complaint with New Hanover County Schools (NHCS) and a federal complaint the U.S. Department of Education’s Office of Civil rights, the school moved her 9-year-old daughter into a new class with 5-year-old students — a move the mother described both as harmful to her daughter and as retaliation.
According to NHCS, staff have been “working diligently” to resolve the situation, which includes accommodating a child who is allergic to dogs — although it appears that child’s mother was open to short visits by the service dog. The district didn’t directly address concerns of retaliation but noted the new classroom is “fully capable of serving the educational needs” of the student.
The denial of access was initially based on the school’s “use of service animals” policy, which appears to have some discrepancies compared to federal law.
Erin Barbee enrolled her daughter in Kindergarten at Walter L. Parsley Elementary School in 2015. Her daughter, who is a special needs student, has had an individualized education plan (IEP) and has been in a ‘specially designated academics’ (SDA) classroom since then. According to Barbee, her daughter made significant progress in her 3rd-grade year and so Barbee and school staff agreed to have her repeat the grade since she worked especially well with that particular classroom teacher, as she would continue to give her a strong 3rd-grade academic foundation.
In the spring of 2018, Barbee applied for a service dog to assist her daughter, providing sensory tactile pressure, alerting her when she’s struggling, and assisting with balance and stability.
Towards the end of that school year, Barbee met with Parsley Principal Dr. Robin Hamilton to discuss the upcoming year and discussed implementing a service dog into her daughter’s school routine. Barbee said she discussed the issue at IEP meetings and with Hamilton on several occasions. According to Barbee, the principal remained non-committal, saying the school would ‘look into it.’
Over the summer of 2018, Barbee was paired with the dog that would become her service animal. The process was delayed by Hurricane Florence, but training for the service dog began in November of 2018. The dog passed his public access test — allowing him to access to all public areas under federal law — in February of this year and moved in with Barbee’s family.
It’s important to note that this was a service dog — not an emotional support or therapy dog. Service dogs are allowed access to public areas, including public schools, under federal law, while emotional support dogs are not (although they may still be allowed under certain circumstances). This access comes with responsibilities and costs. The dog received many hours of training and Barbee, as the dog’s handler, is responsible for passing a public access test with her daughter’s service dog every year.
Barbee began bringing the service dog to Parsley in February 2019, particularly when her daughter had medical appointments or had to leave early for other reasons. Since Barbee is the dog’s handler, the dog would only be at the school for short periods of time — 15-30 minutes — while Barbee was there. The long term goal, Barbee said, was to slowly integrate the dog into a school setting so that in the future, when her daughter is able to handle the dog, she could have the dog full-time (something that is allowed at several other NHCS facilities).
Denial of access
On August 23, Barbee’s daughter attended the open house at Parsley, accompanied by her service dog and two caregivers, one of whom brought her own service dog. To help accommodate her daughter’s disability, Barbee had arranged a “quiet open house,” so the main part of the open house had not begun yet.
According to Barbee, Hamilton had Rosemarie Wheeler, Parsley’s vice principal, present a copy of NHCS’s “use of service animals” policy. According to a formal complaint filed by Barbee, the vice principal then told the caregivers that they and both dogs would have to leave school property because they had violated the district’s policy which, among other things, requires a review of medical records, advance notice, and permission from the school. According to Barbee, the caregivers informed the vice principal that under federal law the service dogs were allowed.
According to Barbee, both Hamilton and the vice principal reiterated earlier concerns about “dog hair” and “allergies” of other students, and Barbee’s daughter and her caregivers were forced to leave. The following week, Barbee attempted to bring the service dog on campus to be present while her daughter received medication; she said she was again turned away.
Over the next five weeks, Barbee attempted to get the school to allow access for her daughter’s service dog.
Federal law limits what questions can be asked about a service animal to two inquiries: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. In an email, Barbee answered both of these questions in late August. Still, the school continued to ask questions and raise concerns, including another student that had an allergy. Barbee told the school that, as stated by the U.S. Department of Justice’s Civil Rights Division, “allergies and fear of dogs are not valid reasons for denying access” for service dogs.
“I was asked what my sense of urgency was, ‘why the rush?’ I was asked to come in for a meeting, asked more questions — and still, all the while, not having my child be able to access her service dog,” Barbee said.
According to Barbee, an attorney from the organization that trained her daughter’s service dog contacted NHCS attorney Wayne Bullard after the first denial of access to explain the federal law allowing service dogs access to public areas. Over the next several weeks, numerous calls were made, but still, Barbee said, the dog was not allowed access.
The school also sent out a letter on Sept. 16 notifying parents that their children could possibly be in contact with a service dog in the future. The letter asked parents to alert the school to any “medical contraindications” or “phobias.” While this might be a reasonable precaution to take for other students, it is explicitly noted by federal agencies that these are not acceptable reasons to deny access. And, still, another week and a half went by without the school allowing Barbee’s daughter’s service dog on campus.
Then, on Thursday, Sept. 26, Barbee filed a complaint with NHCS Superintendent Dr. Tim Markley. The following day, Barbee received an email from Hamilton, saying the school would grant her request to allow her service dog access.
It should have been good news, Barbee said. But for her, it was not.
As part of the school’s decision to grant the service dog access, Barbee’s daughter was moved from her 3rd-grade class to another special needs classroom, an SDA classroom for Kindergarten through 2nd grade.
Retaliation or reasonable accommodation?
According to NHCS, Barbee’s daughter was reassigned because she was “in a classroom with another student who is medically fragile and whose records indicate [the student] cannot be in the presence of a dog due to a severe allergy.”
According to NHCS spokesperson Valita Quattlebaum, “School System staff have been working diligently since the beginning of the school year to resolve the situation in the best interest of all involved and have had numerous communications with Ms. Barbee, the other parent, and the school nurse. A reasonable accommodation was offered to Ms. Barbee for her child to be assigned to a different classroom in the same school if she chooses to bring a service dog into the classroom. The other classroom is fully capable of serving the educational needs of Ms. Barbee’s child. Age differences for students are common in elementary school special needs classrooms. NHCS cannot place the rights of one student over another. NHCS will continue to act in the best interest of ALL students involved.”
Barbee said she was never notified that her daughter could potentially be moved to a new class. She disputes that the new class is “fully capable” of serving her child and also pointed out that the mother of the child with the allergy had already been in contact with her and the school to say it would “be fine” if she brought the service dog in for short periods of time, as Barbee had proposed to do.
“This is not a classroom reassignment, this is a classroom demotion. This does not accommodate [my daughter], it hinders her educational and behavioral growth. She no longer has access to the classroom that she began the school year in, with the teacher and students that were familiar to her. This classroom change drops her to a younger and lower overall academic level. She has an IEP in place with legal binding goals and objectives. Being 9 years old in a classroom with 5-year-old students will set her up for massive regression across the board. She is very much impacted by routine, schedules, and familiar settings. Transitions are one of the most difficult things she struggles with,” Barbee said.
Barbee provided a letter from her daughter’s psychologist to substantiate these claims. She also provided Hamilton with an email from the mother of the child with the dog allergy, written on Sept. 30. In that email, the child’s parent states she told Hamilton earlier in the month — on Sept. 19 — that Barbee’s proposal to bring a service dog into the school would not unduly affect her child.
Barbee said she felt that the relocation of her child was a “direct retaliation” for her filing a complaint.
While NHCS did not directly address questions about whether this could have been perceived as retaliation, the district has in the past stated that NHCS complies with all state and federal laws, including those prohibiting retaliation.
Barbee also said it remains unclear why it took the school five weeks to comply with federal law. NHCS did not directly address questions about whether it was concerned over the delay in allowing access.
Federal law and school policy
NHCS has routinely stated it follows all state and federal laws and the district’s “use of service animal policy” cites federal law — but there do appear to be some potential discrepancies.
Under the Americans with Disabilities Act (ADA), federal law gives service animals fairly broad access to public areas. The federal law supersedes all state and local regulations, including things like health department regulations — which is why service, but not support, animals are allowed in restaurants.
There are some exceptions, including private religious schools (non-religious private schools are still covered). There are some health and safety exceptions as well. For example, a service dog wouldn’t be allowed in a sterile operating room. Federal law also includes provisions to avoid violating one person’s rights in favor of another’s; in schools, that requires that a reasonable effort be made to accommodate all students.
In addition to limiting what questions can be asked about a service animal, federal law states “staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.”
Federal law also states “People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. In addition, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.”
It would be unlawful to, for example, force someone with a service animal to eat in a back room by themselves at a restaurant, or to give them a substandard hotel room.
Federal law does put the onus for training, controlling and supervising, and providing for a service animal on the owner. School officials, for example’ would not be responsible for feeding or providing water for an animal, or for taking it for walks.
NHCS’s service animal policy, most recently updated in September 2012, reads in part:
Students must have prior approval before bringing a service animal onto school property. The student’s parent or guardian must submit a request for the use of a service animal to the principal of the student’s school of attendance on the form provided. Such request must identify and describe the need for the service animal in the school setting. The student’s parent/legal guardian must describe the manner in which the service animal will meet the student’s particular need(s). Individuals requesting the use of a service animal may be required to provide a letter from a physician or other health care provider regarding the need for a service animal.
Whenever possible, requests for the use of service animals on NHCS property must be made at least three (3) weeks prior to the proposed use of the service animal. Service animals will not be permitted in the school setting without prior approval. The criteria for reviewing requests for service animals and guidelines for the use of service animals at school are available at each school and on the district’s website.
Since federal law supersedes state and local law, it’s not clear why NHCS requires that students and their families get permission, provide advanced notice, or to provide a letter from a physician. These requirements appear to go beyond the limited exceptions to public access described in federal law.
According to the National Network, a federally-funded resource for information, guidance, and training on ADA issues:
“The ADA permits a student with a disability who uses a service animal to have the animal at school … Where the ADA applies, however, schools should be mindful that the use of a service animal is a right that is not dependent upon the decision of an IEP or Section 504 team.”
On Friday afternoon, Barbee was contacted by NHCS’s Director for Special Education and Related Services, expressing an interest in an “ongoing dialogue” about her daughter. Options include exploring the possibility of moving Barbee’s daughter back to her original class is service dog visits remain short, and medical clearance for the allergic student is received. Despite that offer, the district remained “confident that the accommodation of moving [Barbee’s daughter]” to the K-2 SDA class “an appropriate option,” according to the email.
NHCS has also suggested moving Barbee’s daughter to a different school as another “reasonable accommodation.”
For Barbee, her concern goes beyond her daughter. Barbee said she was “floored” that NHCS has used — and continues to use — a service animal policy that apparently contradicts federal law since at least 2012. Barbee said that, after six weeks of information gathering and fact-finding by NHCS, the district still apparently stands by its policy (which, as of publication, was still posted online).
Barbee said she wanted to be clear that NHCS “has a lot of very talented, invested, and passionate teachers. These teachers show up every day, they work really hard, they give the best of themselves to their students. These teachers aren’t in it for the money — they’re in it because they love teaching. As families, we trust them with our children each day we send them off to school. Our teachers are critical in our children’s lives and we need to support them and value them.”
For Barbee, the “disconnect here is happening at the administrative level,” adding that she still hopes this will become an opportunity for more people to learn about ADA regulations so that other families with children who use service dogs won’t face denials of service.
Send comments and tips to Benjamin Schachtman at firstname.lastname@example.org, @pcdben on Twitter, and (910) 538-2001.