After months of meetings and negotiation, followed by a complaint that eventually required an additional complaint and the intervention of our senior U.S. Senator, the Civil Rights Division of the federal Department of Justice has agreed to investigate a situation involving Andrew, my 8-year old client with autism.

My involvement began in April 2008, when Andrew’s school district refused to allow him to attend school with his trained autism assistance dog, Sadie.  His parents had gone to the effort and expense of acquiring the specially trained dog from a unique program in Ohio that trains assistance dogs for children with autism, 4 Paws for Ability.  

Andrew and his mom traveled to Ohio and spent more than a week at the program to bond with Sadie and learn how she could help the boy safely interact with others in public settings.  Sadie is also specifically trained to perform tasks designed to quickly de-escalate Andrew’s particular autism-related behaviors, on command or when he becomes agitated.  When he becomes aggressive, Sadie maintains a set distance on a tether by pulling him backwards.  To calm him, she lays down on him to apply comforting pressure, and then licks his face. 

Almost immediately, Sadie allowed Andrew to safely and happily participate in many normal community activities that had been difficult or impossible for him on his own.  His mom is now able to bring him with her to stores, restaurants, and other public places that had been impossible before Sadie.  Also, Sadie’s friendliness fosters positive interactions with other children, something typically difficult for a child with autism. 

Although Sadie clearly benefits both Andrew and the people around him, the school district refused to allow Andrew to bring Sadie to school.  That decision also cut Sadie out of Andrew’s life for about 6 hours every weekday, something that Sadie’s trainers believe reduces her effectiveness in other settings.

The school justified its decision with a number of objections.  One was that under state law, only students who are blind or severely physically disabled are entitled to have assistance animals at school.  Another was that allowing Andrew to bring Sadie to school with him would lead to an unending string of requests for other “therapy animals” from other students, and that the ensuing menagerie would cause allergic reactions and other potential harm that would prove disruptive and potentially lead to lawsuits.

Media reports of other instances in which similarly trained autism assistance dogs had been permitted to accompany students to school with minimal problems and excellent results failed to persuade school district administrators.  They also rejected a number of proposals by Andrew’s parents that included finding out if there were objections by other parents or children, implementing a “test” period to see if concerns were justified, kenneling Sadie during some classes, and professionally grooming Sadie once a week to minimize allergy problems.

The school district’s lawyer argued that the dispute was about special education and therefore could only be about whether my client was receiving adequate special education services.  

The district refused to consider that Andrew has an independent right to attend school with the support he needs and prefers – the same right that a paraplegic has when choosing between using a walker or a wheelchair to navigate in a public place that is supported with public dollars. According to the district, Disability Rights Oregon needed to challenge the rather good special education services that Andrew receives and then, after presumably losing at a due process hearing, go to federal court.

The recent acceptance of our case for investigation by the U.S. DOJ Civil Rights Division is a stark rejection of that legal theory.  Perhaps more importantly, DOJ’s involvement in our case is likely to make the district rethink its position that the protections of special education laws automatically strip students of other rights that protect people with disabilities.  I am hopeful that Andrew will attend school with Sadie by his side by the beginning of the next school year.

(The names used are to protect the privacy of client and family.)

Stories circulate through the media about people who claim to need a "service animal" or "assistance animal" that paint the person as a scam artist who is trying to get around the rules.  It is somewhat like the broad public perception of the insanity defense as a means for criminals to fake their way out of going to jail.  There seems to be a natural inclination for people to feel that if they have to follow a rule, everybody should have to follow the same rule.  No exceptions.

But our disability discrimination laws recognize that some people do need to be treated differently so that they can receive the same services, benefits and opportunities as others.  This topic came up yesterday when Senate Bill 875 was heard by the Senate Consumer Protection and Pubic Affairs Committee.  The bill amends a law that presently allows landlords to charge a pet fee to blind and deaf tenants who have service animals.  Federal and state civil rights laws prohibit the charging of such a fee, and so the purpose of the bill is make the laws consistent.

At the hearing, legislators asked why these animals should be treated differently than pets.  The answer is that they are not pets.  They are an essential aid that allows a person with disabilities to function in the home and in society.  A service animal should be treated by a landlord like part of the tenant.  If the animal were to cause damage to the apartment, it would be like the tenant causing that harm.  General safety or cleaning deposits that are charged to all tenants can certainly be charged to a person with a service animal.  But the animal is not a luxury or an hobby.  It is essential to the life of the person with disabilities.

Legislators also asked about the difference between a service animal like a seeing eye dog, and an assistance animal such as a cat that provides comfort to an individual with mental illness.  There are many jokes circulating in the media about people who claim to need a "comfort ferret" or "companion horse" because of a disability.  The answer is that the law only requires "reasonable" accommodations and that if a person has a medically diagnosed disability and a clinically recognized need for a companion animal in order to remain in independent living, the law protects that need.  It should also be noted that not only the person with disabilities but society as a whole benefits when a person can remain living independently, outside of an expensive care facility.

Disability laws like the ADA and Fair Housing Act exist to allow people to share in the beneifts of society, not to let them shirk the rules.  And yes, Senate Bill 875 was passed by the committee.