Previously, I have talked about service dog v. therapy dogs. I have also talked about the administrative regulations from the Department of Justice with respect to the difference between service dogs and other kinds of dogs that a person with a disability may have with respect to how they would likely hold up under both the administrative procedure act and the equal protection clause of the 14th amendment to the U.S. Constitution. I got the idea for this blog entry from a colleague, Julie Mills, whose blog can be found in my blogroll. She also has a group on LinkedIn where this issue was discussed. Since service dog v. therapy dog is one of my more popular blog entries, I thought I would pursue it further here. Thanks Julie!

Here is the situation. Child in a public school with an individual education plan (IEP) gets a service dog. The parents want the child to be able to bring the service dog with them to school because the service dog will help them in all kinds of ways. The school resists. Without exhausting the IDEA process, the parents of that child go directly to court and sue saying that the school is violating § 504 of the Rehabilitation Act as well as title II of the ADA. The school defends on the grounds that the suit should be tossed out because the parent did not exhaust administrative remedies under IDEA. Does the school win? Before we get to that answer, we first need to know that IDEA has a rather peculiar clause in it with respect to being able to pursue § 504 and ADA suits. That clause states:

“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.” 20 U.S.C. § 1415(I).

The critical question is what does “laws seeking relief that is also available under this subchapter,” mean? Does it mean, for example, that it is a kind of relief that IDEA simply does not provide for? If that is the case, then the parents should be able to go directly to court since whether the child could have a service dog is a discrimination issue and not an issue of whether they are receiving a free appropriate public education under IDEA. Also, assuming deliberate indifference, both Title II of the ADA and the Rehabilitation Act would allow for damages, which is not how IDEA works. On the other hand, if that clause really refers to anything related to the IEP necessitates going through the IDEA process, then the parents will not be able to go directly to court without exhausting remedies first under IDEA. So which is it?

There are, as Julie ably pointed out, two views on this. That is, one view says the parent does not have to exhaust remedies, while the other view says that they do. Judging from my research on Westlaw, the minority view is represented by Sullivan by and through Sullivan v. Vallejo City Unified School District, 731 F. Supp. 947 (E.D. Cal. 1990). In that case, the Eastern District of California held that whether the child could have a service dog with him or her in the school had nothing to do with their IEP since the child was happy with that plan. Rather, this was a substantive question arising under, in this case, § 504 of the Rehabilitation Act. In fact, IDEA doesn’t have anything to do with whether a court could mandate a service dog on a school district regardless of whether that service dog was educationally necessary.

The majority view is that if the child has an IEP, then the remedy clause mentioned above applies if the situation is related to or has an impact on the IEP. The fact that relief may be sought that is different than what can be obtained under IDEA is of no matter. The case that represents this view is Cave v. East Meadow Union Free School District , 514 F.3d 240 (2d Cir. 2008). In this case, the Second Circuit said that exhaustion is required because:

1. Allowing a service dog would have a substantial impact on the child’s IEP in a variety of ways and therefore, is best dealt with through the administrative process under IDEA;

2. Education encompasses more than simply academics;

3. A request to have a service dog be permitted to assist the child is not entirely beyond IDEA’s educational scheme;

4. The language of the remedies provision noted above is sufficiently broad and encompasses complaints asserted under any federal statute, such as even § 1983, so long as they are seeking relief available, as described by the Second Circuit, under IDEA;

5. While there is a futility exception to having to go through the IDEA process, there was no evidence in this particular case that futility could be presumed.

Which is the better rule? The answer to that question is going to depend upon whether you are advocating for the rights of persons with disabilities or you are defending school systems. I can say that Sullivan is not finding much currency, while Cave has been cited 168 time with fully 72 of those times in cases that adopt the Second Circuit’s view of when a person has to exhaust administrative remedies under IDEA. That said, I was not able to find much in the way of cases dealing with the issue of service dogs and exhaustion of administrative remedies. Also, as of yet, there is no circuit split on this question. Thus, it may be a while before this question makes its way to the United States Supreme Court. By the time it does make its way to the United States Supreme Court, who knows what the composition of that court will be. That said, if the current composition is assumed, one would think that a broad reading of the remedies clause, Cave, would have an excellent chance of becoming a prevailing view, though, of course, one never wants to bet on what the United States Supreme Court will do.


1. Service dog litigation is going to explode in light of the complexity of the Department of Justice regulations. Thus, if you have a child with an IEP and that child obtains a service dog, the better practice is to go through the IEP process and exhaust that first. Once that is exhausted, then go to the courthouse alleging violations of § 504 and title II of the ADA.

2. Keep in mind, that not every child with a disability is protected under IDEA. It is quite possible that the child may be protected under § 504 of the Rehabilitation Act and the ADA and not IDEA. In that case, they would have a § 504 plan. § 504 plans are very informal: Documentation is submitted, a team meets, plan is formulated, and the team meets as needed to refine the plan when it is necessary to do so. However, all the procedural aspects of IDEA are not present in § 504 plans. Thus, a question does arise as to whether if the child has a § 504 plan but no IEP and obtains a service dog, would that child first have to exhaust the § 504 process? It isn’t much of a process to begin with. Therefore, the better course of action would be to raise it with the 504 team first and proceed from there. That said, a strong argument can be made that such exhaustion would not be required in this particular situation.

3. It is possible that a child who might be eligible to be covered under IDEA chooses not to be and has a § 504 plan instead. If that child gets a service dog and the school resists, that child, as mentioned above, could likely go directly to the courthouse without going through the 504 team first. Since this is the case, you may see the bizarre situation of a school actually encouraging a parent who was otherwise happy with the § 504 system to enter into the rather complicated procedural thicket and more adversarial system of IDEA so that the school system can keep the parent in the IDEA administrative system as long as possible before having to litigate in court.