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Pinellas County parent, Elizabeth Shea shared her son’s experience with FSA testing today. He is nine years old and has a diagnosis of autism. He has a service dog to help him to function more effectively in his daily life.  He attends Florida Virtual Academy and is required to test at the neighborhood school.  He has an IEP (Individual Education Plan), which is:

“a plan or program developed to ensure that a child who has a disability identified under the law and is attending an elementary or secondary educational institution receives specialized instruction and related services.”

Her story is shared here with permission:

“My son reported to his local school, as required, to take the FSA this morning. He is autistic and has an IEP and a service dog. I am a certified dog handler because he is too young to handle the dog alone. We had arranged months ago through IEP meetings, supplying all paperwork, ID, records, that the dog would report with him for any testing, both with the school district and the FLVA where he is a student.

Soon after we arrived, I was asked to leave the private testing room, which I cannot legally do as the dog handler. A service dog must be under the control of its handler at all times. I explained the laws. The proctor left the room to call the administrators. While we waited, I texted my son’s dad that there was some hold up with me handling the dog. He was dropping our daughter at school nearby, so he came over.

He, the vice principal and the proctor returned to the room, where my son and his dog were quietly sitting and waiting with me. They said I could not stay in the room with my son and his dog. They said I could wait outside the door and peek through a window. But again, I have to hold the dog’s leash as I am the handler responsible for him while he works for my son. I told them to just let him minimally participate then, sign the booklet and break the seal.

They told me this would invalidate his test, to which I agreed. But once again, they would not let him do that with his dog and me in the room, and he was getting visibly upset because they were making me leave the room with his dog. He started crying, babbling loudly and hitting himself in the face. I had to get down on my knees in front of him, face to face, put my hands on his shoulders and tell him that I would be right outside the door with his dog, he would sign his name and we could leave… hoping he would calm down. But then, they decided that me being outside the door with the dog (that his IEP says should be with him) would violate his IEP, so we could not do that either.

We left without being allowed to take the test, or even minimally participate. I hope they work this out by tomorrow, Thursday and Friday, when we are required to report for more testing. At this point, all we want is for him to minimally participate as required by law, with his service dog and handler present, as required by federal law, and school district policy.”

In this video from last November, Rick Shea addressed the Pinellas County School Board about this very issue – the rigidity with which districts believe they must implement testing mandates, and which are perceived as especially rigid for children with disabilities.

Elizabeth Shea stated that she had worked out all the details beforehand.  Why was the proctor not aware of how the Americans with Disabilities Act (ADA) applied to this child in this situation?  Although in less hurtful ways, this is the same thing that is going on in schools with ALL children.  Because of the stubbornness of district leadership to set the right tone for their districts, children will continue to be harmed by the ignorance and misinformation of the adults who educate and care for them in school.

Is it going to come down to a class action lawsuit on behalf of children like Elizabeth Shea’s son?

A service dog is not a pet.  One does not simply “have a service dog.” The dog is allowed to be ANYWHERE the child is allowed to be. As a service dog, the dog is an extension of the child, an assistive device, to help a child with disabilities to achieve equity with his peers. His mother was not there as his “mom,” but as an extension of his “assistive device.” His service dog is a necessity for him to take the test on as equal a footing as possible with his peers, like eyeglasses, or a hearing aid would be necessary.

From Disability Rights Ohio:

Are there laws about using a service animal in school?

The American with Disabilities Act (ADA) may require a school district to modify its policies, practices or procedures to permit the use of a service animal by a student with a disability.

The Individuals with Disabilities Education Improvement Act (IDEA) and Section 504 of the Rehabilitation Act may require school districts to allow a child to bring a service dog to school as a part of a Free Appropriate Public Education (FAPE).

Section 504 of the Rehabilitation Act prohibits disability discrimination in schools. The Office for Civil Rights, responsible for school district compliance with Section 504, has determined that a school district violates Section 504 when it does not allow the use of service animals and this effectively denies a student with disabilities the equal opportunity to participate in or benefit from an educational program.

From the Ferrara Fiorenza, PC, a New York Law Firm specializing in School Law:

“While you may have concerns over permitting a service dog in your schools, the new regulations limit the circumstances under which schools can exclude these animals.  Generally, service dogs cannot be barred from schools because of unsubstantiated health, sanitation, or safety concerns.  Moreover, the dogs may go anywhere pupils are permitted, including classrooms, hallways, and cafeterias.  For example, if a teacher or another student is allergic to dog dander, the U.S. Department of Justice (“DOJ”) suggests that he or she be placed in a different classroom than an individual using a service dog.”

In other words, the child takes precedence over the institution. The rights of children with disabilities are such a concern that, by law, employers, businesses, public agencies are not even allowed to ask why someone has a service dog.

Since March 1, when FSA testing began, we have continued to receive reports from across the state, of erroneous and unsubstantiated claims being made by school administration and staff to dissuade parents from opting out. Bullying, intimidation and outright lies. How can any data collected under these conditions be, in any way, valid? Is the test data really so crucial that it doesn’t even matter if the data is valid? Exactly how far is the Florida Department of Education willing to go to get the data? Now we are at the point where children’s civil rights are being violated with astonishing disregard, for the simple reason that the proctor was not aware that the child’s service dog is allowed to be ANYWHERE he is allowed to be. What is most disturbing about this incident is the obvious lengths to which districts ARE willing to go to test our children.

Rick and Elizabeth Shea are equal stakeholders in their son’s education and his IEP. What happened to the Shea’s child today goes beyond testing, but it is a result of high stakes testing. One cannot imagine the distress this eight year old child experienced. One can only imagine how he will respond when he has to go through this again – four more times in the coming days.

This was a violation of the Individuals with Disabilities Education Act and the Office for Civil Rights (OCR) takes such offenses seriously. The FDOE and other districts are also failing to deal fairly with issues of discrimination against children with disabilities. If districts fail to properly inform and educate their staff as to their responsibilities (and limits), violations will continue and a massive class action lawsuit seems inevitable.  Lessons will be emotionally costly for the children, who suffer the harms of having their rights violated. That harm to our children also comes at a cost, but who will pay?

If money is the only language the districts and the state understand, then perhaps THAT is what it will take for them to wake up and do the right thing, especially for our most vulnerable children.

 

Suggested Reading:

If a complaint is to be filed, it must be done within 180 days of the incident here: USDOE OCR Complaint Forms

Service Dog Central FAQ

REQUESTS FOR USE OF SERVICE DOGS IN SCHOOLS REQUIRE CAREFUL CONSIDERATION

What is the difference between an IEP and a 504 Plan?

Use of Service Dogs in School

 

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