New York’s Commissioner of the Division of Human Rights (DHR) has ruled that a school district’s refusal to allow a hearing impaired student to bring his service dog to school violates the state’s Human Rights Law (HRL)
New York State Div. of Human Rights v. East Meadow Union Free Sch. Dist., No. 10115533 (N.Y. Div. H.R. Mar. 10, 2008)
March 10, 2008
New York’s Commissioner of the Division of Human Rights (DHR) has ruled that a school district’s refusal to allow a hearing impaired student to bring his service dog to school violates the state’s Human Rights Law (HRL). John Cave, Jr. attends W. Tresper Clarke High School in Westbury, New York, where he receives special education services. East Meadow Union Free School District (EMUFSD) officials denied John permission to bring his service dog to school based on a policy that addresses the needs of students with disabilities, including those who require the use of guide, hearing, or service dogs, “on a case-by-case basis.” The policy “utilizes a balancing test” that weighs the potential benefits to the student against “the risks inherent in having a service animal in the school building.”
The Commissioner found that the HRL “prohibits discrimination by ‘an education corporation or association’ against any person with a disability, as defined by the Law and regardless of level of impairment, on the basis of her/his use of a guide, hearing, and service dog, which discrimination includes, … denying access to educational facilities.” Addressing EMUFSD’s contention that the HRL does not apply to school districts because the law fails to define “education corporation,” the Commissioner determined that to allow school districts to avoid compliance because the term is undefined would defeat the intent of the HRL to prevent and combat discrimination in education and in access to educational facilities, programs, and activities.
In defense of its policy and practice on the use of guide, hearing, and services dogs by students with disabilities, EMUFSD relied on a district manual on “Programs for Students with Disabilities” and “Access to Individualized Education Program,” and on a state court ruling in Perino v. St. Vincent’s Medical Center of Staten Island, 132 Misc. 2d 20, 502 N.Y.S.2d 921 (N.Y. Sup. Ct. 1986). The Commissioner found the manual irrelevant because it failed to address the HRL and is based on the federal Americans with Disabilities Act (ADA), which does not contain any provision regarding the use of guide, hearing, and services dogs. New York courts have held that the ADA does not govern the DHR or New York courts with respect to the HRL, which “is viewed more broadly.” Regarding Perino, she found the decision was not controlling because: “1) the present case involved education, which has been recognized in this State as a civil right, and access to education and educational facilities as an exercise of that right; 2) the Perino decision was based solely on a previous decision involving the right of a person in a wheelchair to participate in a road race … ; and 3) unlike the defendant in Perino, East Meadow is not faced with the Hobson’s choice of breaking one law or another ….” Having ruled that EMUFSD is subject to the HRL and its policy and practice of denying students with disabilities use of their guide, hearing, and service dogs while in school violate the HRL, the Commissioner ordered EMUFSD to cease use of its current policy and to implement new policy and practices that comply with the HRL.
[Editor’s Note: The New York Times reports below that Carol Melnick, a lawyer for the district, said the ruling would be appealed in state court, automatically staying the Commissioner’s order. The Times also reports that Paul J. Margiotta, the family’s lawyer, said the family plans to file a state lawsuit against the district within a week, claiming $150 million (yes, you read that correctly) for violation of civil rights. The second link is to a United Press International (UPI) story reporting that the day after the Commissioner’s ruling, EMUFSD officials again refused to allow the student to enter school with the dog and that Mr. Margiotta said school officials say the HRD decision is not enforceable unless a court orders the dog’s admission. In January 2008, the U.S. Court of Appeals for the Second Circuit had dismissed a suit brought by the student, based on federal law claims, ruling that he had failed first to exhaust his administrative remedies under the federal Individuals with Disabilities Education Act. That decision is summarized at the third link.]
Source: New York Times, 3/11/08, By Winnie Hu
Source: UPI, 3/11/08, By Staff
NSBA School Law pages on Cave v. East Meadows Union Free Sch. Dist.