K.D. v. Villa Grove Community Unit School District No. 302 Board of Education

936 N.E.2d 690, 403 Ill. App. 3d 1062
CourtAppellate Court of Illinois
DecidedAugust 24, 2010
Docket4-09-0913
StatusPublished

This text of 936 N.E.2d 690 (K.D. v. Villa Grove Community Unit School District No. 302 Board of Education) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.D. v. Villa Grove Community Unit School District No. 302 Board of Education, 936 N.E.2d 690, 403 Ill. App. 3d 1062 (Ill. Ct. App. 2010).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

In July 2009, plaintiff, K.D., by and through his parents, Michelle D. and Bradley D., filed a complaint for injunctive relief alleging defendants, Villa Grove Community Unit School District No. 302 and Dr. Steven Poznic, in his official capacity as District No. 302 superintendent (referred to collectively herein as the District), violated section 14 — 6.02 of the School Code (105 ILCS 5/14 — 6.02 (West 2008)) by denying K.D., a student with autism, use of a service animal. In November 2009, the trial court entered an order finding K.D.’s dog to be a service animal and ordering the District to allow K.D. to bring the dog to school functions.

The District appeals, arguing the trial court erred in granting plaintiffs injunctive relief because (1) plaintiffs failed to exhaust their administrative remedies and (2) K.D.’s dog was not a “service animal” pursuant to section 14 — 6.02 of the School Code. We disagree and affirm.

I. BACKGROUND

When this action commenced, K.D. was six years old and attending Villa Grove Elementary School, a school located within the District. K.D. is autistic, which places him under the purview of article 14 of the School Code (105 ILCS 5/14 — 1.01 through 14 — 16 (West 2008)) as a child with a disability. In May 2009, K.D. received a Labrador retriever named “Chewey” from Autism Service Dogs of America (ASDA). Later that month, the District sent plaintiffs a letter informing them Chewey was prohibited from accompanying K.D. to school. Plaintiffs continued to negotiate with the District as to Chewey’s entry into the school. On June 29, 2009, the District informed K.D.’s parents it prohibited Chewey from attending school with K.D. that summer. K.D. was enrolled in an extended school-year program to prevent his academic and functional skills from regressing during the summer scheduled to begin July 1, 2009, but was unable to attend after the District refused to allow Chewey to accompany K.D. to class.

On July 9, 2009, K.D.’s parents filed a verified complaint and a motion for temporary restraining order and preliminary injunction on K.D.’s behalf, claiming section 14 — 6.02 of the School Code (105 ILCS 5/14 — 6.02 (West 2008)) permitted K.D. to bring Chewey with him to Villa Grove Elementary School.

On July 13, 2009, the District filed a motion to dismiss plaintiffs’ motion for temporary restraining order and preliminary injunction, contending (1) plaintiffs failed to exhaust their administrative remedies before commencing their action before the trial court and (2) Chewey was not a “service animal” for purposes of section 14 — 6.02 of the School Code. After a hearing the following day, the court denied the District’s motion and granted plaintiffs’ motion for a temporary restraining order, thereby enjoining the District from denying Chewey from attending school with K.D. As a result, Chewey accompanied K.D. to school during the entire 2009-10 school year.

In August 2009, plaintiffs amended their complaint regarding the prayer for relief. Upon amendment, plaintiffs sought a trial court order requiring the District to not only permit Chewey to attend school with K.D. but also (1) train at least one primary staff member and one backup staff member in service-animal equipment and the necessary commands 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 student 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 physical-education classes; and (4) allow Chewey access to water and to relieve himself when appropriate during the school day. The District filed a motion to strike the amended prayer for relief. The court allowed the District’s motion, finding plaintiffs’ requested relief exceeded the scope of the School Code.

On November 10, 2009, the trial court conducted a hearing on plaintiffs’ complaint. At the hearing, plaintiffs called two witnesses, Kati Witko and Nichelle D., and the District called three, Aimee Rear-don, Kathy Burgess, and Beth Wiessing.

Witko testified ASDA employs her as a program training director. Witko holds a two-year “dog certificate” from Animal Behavior College, and her job consists of training dogs to assist children with autism, including Chewey.

According to Witko, ASDA dogs receive approximately 16 months of training, beginning when the dogs are between 6 and 8 months old. As part of a dog’s training, ASDA employees take the dog to schools, with both autistic and nonautistic children, so it can learn to remain calm around children who exhibit loud behavior. While at school with its child, a dog remains in a “down-stay” position, which “can look like sleeping,” to keep the child calm and safe. The dog does not move from the down-stay position unless commanded by its handler. Accordingly, the handler plays “a big role” by ensuring the dog does “what he’s supposed to at the right time.”

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.

Witko further testified Nichelle received training in Oregon with Chewey before ASDA placed Chewey with the family in Villa Grove. After placement, Witko flew to plaintiffs’ home in May 2009 to teach Chewey how to apply his training to K.D. Typically, such training includes school placement, but because the District refused to allow Chewey in K.D.’s elementary school, Witko could not perform such placement during her May 2009 visit. However, she was able to conduct the training upon her return in August 2009, which K.D.’s speech teacher, his one-on-one aide, the head of special education at the school, and “some fill-in aides” attended. Upon completion of the training, Witko provided written information, her phone number, and her e-mail address. No one from the school contacted Witko, and Witko’s follow-up telephone calls were never returned.

According to Witko, Chewey’s training taught him to stand his ground when tethered to K.D., thereby preventing K.D. from running away. Witko explained when autistic children are outside, they need to be held onto to prevent them from running off into dangerous situations. The tether system provides children with a sense of interdependence and an ability to move about how the children wish without being held onto by an adult. Tethering also reassures family members and school staff the child will not run, and thus it permits them to “do more things and get [the child] more into the social realm and environment.” Witko also explained Chewey aids K.D.

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Bluebook (online)
936 N.E.2d 690, 403 Ill. App. 3d 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kd-v-villa-grove-community-unit-school-district-no-302-board-of-illappct-2010.