John McDonald’s service dog is by his side whenever the six-year-old with autism leaves his Sherwood, Ore. home.

So, it was confusing to both the boy and his dog, Kai, when John had to leave the black Labrador outside the doors to Middleton Elementary School.

Sherwood School District has refused to allow John’s instructional assistant to oversee the dog while she works one-on-one with the boy in class, saying the family must supply a handler for the dog.

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John’s mom, Jennifer McDonald, said the family cannot afford a handler, and she cannot quit her job to sit in the classroom, hold the dog’s leash and occasionally give him commands.

On Dec. 15, the family’s attorney, Elizabeth Polay, filed a civil rights complaint with the U.S. Department of Justice, claiming the district has violated John’s rights under Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act.

John is nonverbal and has a tendency to run when his anxiety gets the better of him. Because the boy has no sense of danger, his parents worry he will slip away from his aide and run outside the school.

McDonald said Kai, who is tethered to John with a belt harness, not only physically keeps the boy from running but also calms him to the point where he doesn’t want to run and allows him to better focus in class.

Sherwood’s argument

Sherwood’s attorney, Rich Cohn-Lee, said he had not seen a copy of the complaint and couldn’t comment on its contents, but the district’s position hasn’t changed.

The district has also cited the Americans with Disabilities Act in its argument, saying the regulations state a school district “is not responsible for the care or supervision of a service animal.” Cohn-Lee said that includes handling of the dog.

It is not, however, a mandate. School districts can choose to allow staff to assist a student by acting as the handler of the service dog. Another district allowed an aide to handle Kai when John attended school there.

Cohn-Lee said the family demonstrated for him and district administrators how the handler works with the dog. “The staff person would have to take the leash and issue verbal commands to the dog to get the dog to move from one area to another,” he said. “The student would hold onto the handle.”

Cohn-Lee said it helped solidify to the district that the assistant would be providing care and supervision of the dog.

He said it places an additional burden on the aide to handle the dog while also attending to the educational needs of the boy.

McDonald’s Argument

The McDonald’s 12-page complaint takes issue with the district’s interpretation of the law.

• Polay stated that the restriction on care and supervision of service animals doesn’t apply in educational settings where the day revolves around the care and supervision of children. “Where providing individualized assistance and safety are part of the program, a reasonable modification includes educators or aides issuing commands to, guiding around campus, or tethering and re-tethering a service animal for the benefit of a student in the program.”

• In addition, Polay noted, Kai is trained to refrain from eating and drinking during the day and doesn’t need to relieve himself. “The tasks district staff would perform in order to provide John with intermittent assistance in handling Kai are so nominal that it cannot be considered care and supervision of the animal.”

• The ADA prohibits charging people with disabilities fees to cover the cost of program accessibility and reasonable modifications, especially for service animals, Polay wrote. “Requiring the McDonalds to pay for a private handler would, in effect, charge the family for the use of the service dog,” she wrote. Forcing a parent to leave work to take on the task would deprive the family of income causing the same effect.

Overall, Polay said John’s use of the dog extends beyond his special education classroom.

“In order for a service dog to be effective, it must consistently spend time with the person being assisted,” she wrote. “John may choose to use a service animal for the rest of his life, and his ability to continue to form a successful bond is thus key to his development.”

John and Kai

Meanwhile, John continues to attend school without Kai. They’ve been apart during the school day since Dec. 8 and, so far, staff report John hasn’t had any problems, McDonald said.

“The whole safety thing keeps me up at night,” she said. “He’s a runner. It might not happen for days or weeks. They’ll get comfortable with him and … you turn your head and he’s gone. It only takes once.”

McDonald said she’s already noticed the bond weakening between her son and Kai.

“They are both excited to be reunited when we pick John up from school, but the bond will take some time to strengthen as they are apart for so many hours of the day,” she said.

Both the boy and dog, who have been together since last June, need to stay up on their training.

“When he (Kai) is not doing what he is trained to do, it makes it harder for the times when we do tether them together,” McDonald said.

Next steps

The process will be a potentially long one for the McDonalds. The complaint sits in the Civil Rights Office in Washington, D.C. awaiting review.

“There is a high volume of complaints about disabilities and a small office to address that. So, there is a backlog,” said David Knight, U.S. Attorney’s Office civil rights coordinator in Portland, Ore.

The team will determine if the complaint merits investigation, which should be known in a matter of months, Knight said.

If an investigation is warranted and the district is found to have discriminated against the student, the United States could file a lawsuit against Sherwood School District. Typically, however, they try to work out a settlement between the parties, Knight said.

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