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Fry v. Napoleon, Community School - Some Surprising Optimisn

On February 22, 2017, the Supreme Court of the United States issued a decision in Fry v. Napoleon Community School, a case involving the rights of a developmentally disabled young child. Fry offers some surprising optimism for the future but does not deal with the rights and entitlements required by every developmentally disabled person within the United States who require and are entitled to a system constitutionally eliminating institutions and its longstanding inhumane system and establishing a new system providing one of small community residential homes and group homes together with all necessary and required services to all deemed to be constitutional.

In the Fry case a child (referred to as E.F.) suffering with a severe form of cerebral palsey has a trained service dog, named Wonder, provided to her by her parents, to assist her with various necessary daily life activities. When E.F.’s parents sought permission for Wonder to join E.F. in kindergarten, officials of the school refused. The officials reasoned that the human aide provided as part of E.F.’s individualized education program rendered the dog superfluous. In response, the parents removed E.F. from the school and began homeschooling her. Then the parents filed a complaint with the Department of Education’s Office for Civil Rights (OCR), claiming that the exclusion of E.F.’s service animal violated her rights under Title II and §504. OCR agreed, and the school officials invited E.F. to return the school with Wonder.

WOWIE!!! Great result but the fight goes on. Those parents are very tough confrontational advocates. Say “no” to the Frys’ child and protect your nose.

However, E.F.’s parents were concerned of resentment from school officials and enrolled E.F. to a different school that welcomed the service dog. Then, they filed suit in the federal court in an action against the school districts and officials alleging violations of Title II and §504 seeking declaratory and, additionally sought, monetary relief. The District Court granted the school district’s motion to dismiss the suit, holding that federal statute required the parents to first exhaust their IDEA’s administrative procedures. The Sixth Circuit (the federal appellate court follows the District Court and precedes the Supreme Court of the United States) affirmed, reasoning that the same federal statute (§1415[l] applies whenever a plaintiff’s alleged harms are “educational” in nature.

It was interesting and encouraging to know that the majority opinion was delivered by Justice Elena Kagan, a liberal/progressive member, joined by Chief Justice John G. Roberts, Jr., (conservative) Justice Anthony M. Kennedy, (conservative), Justice Ruth Bader Ginsburg, (liberal/progressive), Justice Stephen G. Breyer, (liberal/progressive), and Justice Sonia Sotomayor, (liberal/progressive). It was, in effect, an unanimous decision with Justice Samuel Anthony Alito, Jr., (conservative), writing a separate opinion concurring in part and concurring in the judgment in which Justice Clarence Thomas, (conservative), joined.

This was all but an eight to zero win. One of the liberal/progressive Justices wrote the opinion and even the four conservative Justices agreed to the judgment. It seems to me that Justice Kennedy has always been considered to think to be a swing vote giving the minority liberal/progressive Justices an opportunity to win. In my opinion, although Chief Justice John G. Roberts, Jr. is a conservative who wants to protect his legacy being established and written as we watch and read.

I am always suspicious when things seem to be unusual. I do not jump in. I prefer to wait, watch and learn. On June 29, 1999, the Supreme Court of the United States issued a majority decision written by Justice Ruth Bader Ginsburg in the Olmstead case. It was a bit of a mish mash but did confirm some important rights for the developmentally disabled. Justice Anthony M. Kennedy wrote a separate opinion that appeared to me that Justice Kennedy seemed to get lost as to the differences of the developmentally disabled and the mentally ill. As Justice Kennedy did not offer a separate opinion in the Fry case, I can only be hopeful that he became educated into these subjects by this time.

Certainly, the Supreme Court took on a procedural issue as to whether the parents of a handicapped child or adult under the Individuals with Disabilities Education Act (IDEA or Act) and determined that it is not always necessary to exhaust one’s IDEA’s administrative procedures prior to filing suit in the federal courts. This determination is a benefit for some parents who want to file suit without the need to exhaust all administrative procedures prior to filing suit seeking relief and money damages. It will not benefit every parent who has a child suffering with a disability.

In my view (note that I am retired from the practice of law and surrendered my license), this decision could be an indication that the Supreme Court is opening its eyes and seeing the developmentally disabled. However, the Fry decision cannot excite me. Except for making it easier to avoid the time and cost needed to prosecute the administrative procedures, not much in the way of law in favor of the developmentally disabled is established.

However, it is important to note, with a large dose of skepticism that the decision issued by the Court by Justice Elena Kagan, a liberal/progressive member. At best, this may be permitting us to see through a cloudy window providing an unknown and unknowable scenario whether the Court is ready to grant constitutional rights to the developmentally disabled throughout the United States

In addition, it is important to note that five other members of the Court joined with Justice Kagan. Of the five members Chief Justice Roberts, Jr. and Kennedy are conservatives. In addition, the other three liberal/progressive members (Justices Ginsburg, Breyer and Sotomayor) joined with Justice Kagan. Amazingly, Justices Alito, Jr.’s by separate opinion concurred in part of Justice Kagan’s opinion but concurred with the judgment. Justice Thomas signed in with Justice Alito, Jr.’s opinion. Justices Alito, Jr. and Thomas are extreme conservative members.

It is important to be careful, thoughtful and well versed when an attorney is interested in filing new litigation regarding class litigation seeking the vindication of the rights of the developmentally disabled.

I will continue to read, watch and write.

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My next column will be published next week.

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