School District Resists Autism Service Dog, but Benefits Outweigh Control Problems

K.D., an autistic child, attended an Illinois elementary school. In May 2009, the boy received a Labrador retriever, Chewey, from Autism Service Dogs of America (ASDA). The court kept the child’s identity and the family’s name confidential, but news reports have identified them. The Villa Grove School District soon sent K.D.’s parents a letter saying that Chewey could not accompany K.D. to school. In July 2009, K.D.’s parents filed suit, seeking a court order permitting K.D. to bring Chewey to the school. The school district filed a motion to dismiss the case because (1) the parents had not exhausted administrative remedies before beginning their suit, and (2) Chewey was not a service animal under the Illinois School Code, which specifies:

"Service animals such as guide dogs, signal dogs or any other animal individually trained to perform tasks for the benefit of a student with a disability shall be permitted to accompany that student at all school functions, whether in or outside the classroom." 105 ILCS 5/14-6.02

The trial court denied the school district’s motion to dismiss, and Chewey went with K.D. to school during the 2009-2010 school year.

The parents then sought a court order to require the school district to:

1. Train at least one primary staff member and one backup staff member in the commands needed for Chewey to accompany K.D. to all school functions.
2. Designate one primary staff member to hold Chewey’s leash while K.D. is also tethered to Chewey during transition periods throughout the school day.
3. Designate one primary staff member to release K.D. from his tether while he uses the restroom facilities and during periods with heavy physical activity, such as gym classes.
4. Allow Chewey access to water and to relieve himself during the school day.

The trial court denied this relief, finding the request exceeded the scope of the School Code.

At a hearing, Kati Witko, an ASDA program training director, who trained dogs to assist autistic children, described Chewey’s training. Dogs receive approximately 16 months of training, beginning when they are six to eight months old. Dogs in training are taken to schools to learn to remain calm around children with loud behavior. Dogs are taught to remain at a down-stay position with a child, and not to move from that position unless commanded by a handler.

"Witko stated Chewey is not currently commanded by K.D. because K.D. does not function at a level where he could provide Chewey with a sense of leadership or control. Rather, he is specifically trained not to respond to K.D.'s commands, and thus someone else must command him. Although Chewey knows over 30 commands, a handler needs to know only 5 to manage Chewey in a school environment. Chewey's main handler is K.D.'s mother, Nichelle."

After Chewey had been trained in Oregon, he was assigned to the family in Illinois. Witko went to Illinois to teach Chewey how to apply his training to K.D. This should have involved working in the school as well as the home, but since the school district was not at the time allowing Chewey into the school, Witko had to return in August 2009. At that time she spoke with K.D.’s speech teacher, his one-on-one aide, the head of special education at the school, and some “fill-in” aides. Witko left her contact information with school officials but no one from the school contacted her and her follow-up calls were never returned.

Chewey was taught to “stand his ground” when tethered to K.D. to prevent him from running into traffic or other dangerous situations. Tethering is intended to give the child some sense of independence and to reassure family members and school staff that the child will not be able to run. Chewey was also taught a command to apply deep pressure with his head or a paw to K.D., which Witko described as something children with autism “seek and need.”

Nichelle D. the boy’s mother, testified that K.D.’s autism frequently caused him to run away and into dangerous situations, even leaving the house at night while the rest of the family was asleep. K.D. only slept two to three hours a night. After obtaining Chewey, K.D. became upset for shorter periods of time, completed his homework, and began to sleep six to eight hours a night. Chewey barks if K.D. leaves his bed. He began to go to school calmly and happily, without tantrums.

K.D.’s one-on-one aide, Aimee Reardon, helped K.D. “transition” from place to place and do his homework. She testified that the dog did nothing without a command, but said that commands often had to be repeated two to three times. She said Chewey would bark at other dogs near the playground and try to go to dogs. Sometimes he barks in school and sniffs other students. Removing his gentle leader was sometimes difficult. Sometimes K.D. would try to give Chewey commands that differed from those Reardon was giving the dog, which seemed to confuse Chewey.

Kathy Burgess, a full-time aide for the school district, tethered and untethered K.D. and Chewey in the classroom and lunchroom, and also testified to Chewey’s barking at other dogs and sometimes having to be restrained from trying to get to them. She also said that commands had to be repeated. She said she had not notified Witko about Chewey’s barking because it was not a consistent problem.

Beth Wiessing, a speech-language pathologist, met with K.D. four days a week during the 2009-2010 school year. She expressed concern that Chewey “increasingly” stood up when K.D. stood up, despite not being commanded to do so. The dog once ignored a command to stop following K.D. down a hallway when K.D. was untethered. She also complained of having to repeat commands to the dog. She described K.D. as throwing more tantrums after being paired with the dog, as increasingly repeating vocalizations of other persons (a condition called echolalia), and said that the child’s use of spontaneous language had decreased.

The trial court ruled that Chewey was a service animal because he had been individually trained, the child had a disability, and the dog had been trained to perform tasks for the benefit of the child. The court said that to be a service animal the law did not mean that the dog had to perform tasks flawlessly.

The school district appealed, continuing to insist that Chewey was not a service animal, an argument that was a loser on the facts. The appellate court affirmed the trial court in concluding that Chewey was a service animal, as well as denying the argument regarding exhaustion of administrative remedies. This court agreed with the trial court that even if Chewey’s behavior sometimes varied from his training, the Illinois School Code “does not specify service animals must behave perfectly at all times.” Nor does the statute require that a child’s educational and behavioral performance be evaluated before an animal qualifies as a service animal. In testifying, some of the staff seemed to make too much of minor problems and I had to wonder if they were all on board with the school district’s position and the litigation strategy that came from it.

The school district argued that the dog did not “accompany” K.D., as allowed by the School Code quoted above, because K.D. was not Chewey’s handler. The court found this argument sophistic. Given that the trial court had rejected the parent’s motion to require that numerous staff be trained to handle Chewey while K.D. was at school, neither the trial nor the appellate court required the school to provide a handler. This is somewhat analogous to the situation where a facility is required to admit a service animal, but not to care for it when the handler is unable to take care of the dog. For instance, a hospital may be required to admit a service dog accompanying someone who is getting an MRI, but not required to take care of the dog during the MRI. The patient has to bring an alternative handler. The teachers and aides at a special school must adapt to each child, however, making the situation different from a hospital providing an MRI where no staff member would be responsible for a patient in the same way. If a child uses a prosthetic device, for instance, a school would have to train staff to help the child with the device and the same could be said to be true of a service dog. (See 105 ILCS 4/14-1.08, referring to Special equipment for use in the classroom, required by the child because of his disability….”; see also 105 ILCS 4/14-8.02, referring to “supports” for children with autism spectrum disorders.) Since an aide and other staff performed handler functions during the 2009-2010 school year, it must be hoped that the school district will not now argue that an aide would have to be hired by the parents to assume this role.

The school arguably could have based an argument on the dog’s effect on other children in the school, though I think that this would fail because the school would have to reasonably accommodate conflicting interests. The Illinois Code provides that the service animal “be permitted to accompany that student at all school functions, whether in or outside the classroom.” So even if other children are allergic to dogs, satisfying the statute would require that children be separated into different classes to avoid the problem. At least one family has expressed concern about the safety of their child at the Villa Grove Elementary School. Service dogs are trained not to be aggressive and such concerns would probably have been resolved had the school worked with the ASDA trainer. If counseling did not resolve a child’s fears, again the statute would require the school to find an accommodation for both children.

Schools, service dog organizations, and the parents of the child receiving the service dog should reach a formal agreement as to their responsibilities for a service dog before a dog is placed in a school setting. Patty Dobbs Gross, Executive Director of North Star Foundation in Storrs, Connecticut, says that getting a school to buy into the advantages of a dog working with a child at school is extremely important to help everyone concerned in traveling up the necessary learning curves. Such important topics as bullying from normally developing students can be addressed through the introduction of a service dog if the dog is used as an educational tool. According to Patty, who runs tolerance programs with her service dogs in training at schools, there is no better way to teach tolerance than through the eyes of a puppy being trained to help a child with a disability.

From a staff training perspective, it was unfortunate that the elementary school involved in this case did not work with the trainer from ASDA. The dog could, for instance, have been taught to play in the schoolyard with the children, returning balls with his nose. This would likely focus the attention of the dog on the child (or children) rather than on other dogs within sight of the schoolyard, as well as help to integrate the child with autism socially with his peers. Such training glitches as Chewey sniffing children and being slow to respond to commands from adults would also have been addressed in a timely manner. As Rick Manley of the Phoenix Field and Obedience Club taught me long ago, repeating commands is a way of training the dog to respond to a command only after it has been repeated several times.

The accommodation requirements of some of the newer service dog types may present more difficult questions than merely whether a dog is a service animal. Autism service dogs are required to deal with complex situations, and a child that is abusive to a dog may not be a good candidate for a service animal, but this is one case where the advantages of the dog to the child were very clear. The resistance that formed somewhere in the administrative hierarchy of the school district was most unfortunate.

K.D. v. Villa Grove Community Unit School District No. 32 Board of Education, 936 N.E.2d 690 (Ill.App. 4 Dist. August 24, 2010). For a discussion of autism service dogs and some of the relevant research, see Service and Therapy Dogs in American Society (pp. 79-83).

Email Comment. I received an email from someone who has been following the case who points out that the dog is apparently conflicted when K.D. gives Chewey commands. She points out that this indicates that the dog is willing to respond to the boy's commands and that some bond has formed. When autism service dogs do not bond with a child, the dog tends to ignore the child's efforts to control it, and may even shy away from the child.