Sometimes Even a Federalist's Heart Can Bleed
I recently saw a video on CNN.com (unfortunately it was Nancy Grace, so I had to look for a better source). EDIT: The story is about a school in Oregon refusing to allow a third grader with autism (it sounds like a relatively severe case of autism) to bring his service dog to school.
I looked around, and found this article, giving a more reasonable account of the situation. Now, I am by no means what one would describe as a bleeding heart, but it is my understanding that autism is one of the fastest growing disabilities from which children (and adults) suffer. I am sure there are education law people who know this stuff much better than I do, but it seems to me that this violates the ADA. I did a little digging, and found that there are three provisions that protect the needs of special ed kids: the ADA, the IDEA, and Section 504 (I have no idea what title that is referring to, and my thirty seconds of googling did not give me an obvious results, so I gave up).
My question is this: do any of these federal laws afford an autistic child the right to bring a service animal to school? I understand that there are CERTAINLY people who need service dogs. I also understand that this service dog helps the child (at least in this particular circumstance). However, does the fact that the dog helps the child deal with his autistic tantrums justify its presence in the classroom?
I am on the fence on this one. My initial reaction is, "Why not let the kid bring the dog?" Autism is a widely recognized disability, and the dog affords the child an opportunity to function in a school setting. However, I can also see that the dog could be an enormous distraction to other children, particularly in a third grade special education classroom. Further, the assistance the dog gives is not functional (as it would be for a blind person), but rather is used for comfort. Couldn't there be a less disruptive manner to address this?
Finally, this is a remarkable digression from the original post, but should the federal laws even govern this? As those of you who know me understand, I am not the biggest fan of the current view of the Commerce Clause. How, exactly, does the accomodation of children in special education in a small town in Oregon affect commerce? Because their education will later permit them to participate in commerce? Because the supplies used to instruct the students were involved in, or otherwise affect, interstate commerce? This seems like it should be left to the States to me...
I looked around, and found this article, giving a more reasonable account of the situation. Now, I am by no means what one would describe as a bleeding heart, but it is my understanding that autism is one of the fastest growing disabilities from which children (and adults) suffer. I am sure there are education law people who know this stuff much better than I do, but it seems to me that this violates the ADA. I did a little digging, and found that there are three provisions that protect the needs of special ed kids: the ADA, the IDEA, and Section 504 (I have no idea what title that is referring to, and my thirty seconds of googling did not give me an obvious results, so I gave up).
My question is this: do any of these federal laws afford an autistic child the right to bring a service animal to school? I understand that there are CERTAINLY people who need service dogs. I also understand that this service dog helps the child (at least in this particular circumstance). However, does the fact that the dog helps the child deal with his autistic tantrums justify its presence in the classroom?
I am on the fence on this one. My initial reaction is, "Why not let the kid bring the dog?" Autism is a widely recognized disability, and the dog affords the child an opportunity to function in a school setting. However, I can also see that the dog could be an enormous distraction to other children, particularly in a third grade special education classroom. Further, the assistance the dog gives is not functional (as it would be for a blind person), but rather is used for comfort. Couldn't there be a less disruptive manner to address this?
Finally, this is a remarkable digression from the original post, but should the federal laws even govern this? As those of you who know me understand, I am not the biggest fan of the current view of the Commerce Clause. How, exactly, does the accomodation of children in special education in a small town in Oregon affect commerce? Because their education will later permit them to participate in commerce? Because the supplies used to instruct the students were involved in, or otherwise affect, interstate commerce? This seems like it should be left to the States to me...
posted by Slam Master A at 1:49 PM
10 Comments:
A small critique on this post... how about you give us a short description, in your own words, of what the link you threw up indicates before giving your analysis? Reading this entry by itself is like playing Guess Who with the subject matter. It wasn't until the second paraggraph that I realized we were talking about autistic kids who are not allowed to bring dogs to school.
Granted, I could have just clicked the link... but that's hard.
Actually I feel like things such as the ADA need to be federal. This is because ADA accomodations are expensive, and states would suffer serious loss of business if they have tough regulations while other states do not.
This accomodation, on the other hand, does not seem to implicate commerce, so I would say it is a state issue.
The obvious solution: let Scooter sue.
Or so some would argue. And courts would have to respond to. Seriously.
Sir Master A: if I may, allow me to soothe all your concerns in one blow.
This is not an ADA issue. This is an IDEA (Individuals with Disabilities Education Act) issue.
The family needs a specialist to certify that the dog and its calming effects are critical to his ability to interact socially and pay attention, and is therefore critical to his ability to learn at school. If the specialists recommendation is incorporated into the child's Individualized Education Plan, the federal government will pick up the tab for any attendant costs. If not, there is an administrative board to which the family can petition for reconsideration, followed by district court supervision. If the family wins in one of those forums (or settles, which is likely given how much more expensive it would be fore the school to litigate than to let the dog into class) -- great! If the family loses in all of those forums he probably didn't need the dog after all.
But here is the best part: The IDEA is not a commerce clause statute. It is a spending clause statute.
Spending clause? . . . feel better now? No?
Oh well.
Seems like this should be a Fourteenth Amendment issue - if we're talking about disabilities, then, if it were up to me, we'd say remedial federal regulations like this one are passed under Congress' express authority to enforce the Fourteenth Amendment.
(Note that I said *should* here.)
Patrick is right. The money to pay for the special education services for the child with autism is largely federal--going to the district pursuant to the IDEA. The act gives children with disabilities a right to specialized educational services, so it does have 14th amendment type language in it as well, but the requirements come from the $$ hook.
In my experience (as a volunteer with special needs students at Boalt and as a daughter of a special ed teacher), school districts are very stingy in what they will do to help students in these situations and will usually try to force them into a cookie cutter program that may or frequently may not be in the child's best educational interests. This case in Oregon is a more extreme version of a very common situation. It usually takes a very strong willed parent, and some outside help, to fight back against the district.
What doesn't make sense to me is why the district doesn't allow the dog, because presumably the parents are already paying for it. (If they are asking the school to pay for the dog, that might be a different story.) It would cost the district almost nothing to grant this accomodation and the child will probably do better in school.
Thanks for the responses. And Patrick: no, that doesn't make me feel all that much better. Perhaps I will make a rant post about all my issues with the expansive use of the Commerce and/or Spending Clause. Or any of my fellow Federalists who post on here (who would inevitably sound much less petulant than I in such an endeavor.)
We likely see eyeball-to-eyeball on that issue, SMA. If so, then this case will make your heart smile.
(The ending is sad, though. The case was re-submitted and reversed "in light of Raich.")
http://www.currypilot.com/20100123114600/News/Local-News/Well-miss-you-Dubby-Brookings-school-community-mourn-oss-of-classroom-canine
Our community had a lovely dog in a "mainstream" classroom that worked out great for years!
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