Lawsuit against Catawba County Schools dismissed

A lawsuit against Catawba County Schools that was filed in federal court over a service dog has been dismissed.

Four-year-old Ayden Silva suffers from symptoms from fetal alcohol syndrome. Ayden was adopted by the Silvas when he was 8 months old, according to the initial lawsuit. It said his symptoms include hyperactivity, lack of impulse control, insomnia, sensory integration difficulties, obsessive-compulsive disorder and a development disorder.

His service dog, Chatham, helps Ayden with his self-injurious behavior, impulse control problems, prevents him from wandering away and other dangerous behaviors, according to the lawsuit. The dog had been trained specifically for Ayden for 11 months for distraction/redirection, retrieval of a running child, deep pressure therapy, scent and search tracking and more.

US District Court Judge Richard Voorhees dismissed the lawsuit earlier this month, saying the family did not pursue every avenue with the school system before taking the matter to court.

“The court finds that plaintiff has failed to establish an exception to the exhaustion requirement. As a result, plaintiff has not met his burden of showing that the court has subject matter jurisdiction,” Voorhees writes in his memorandum and opinion. “A determination by this court under a Section 504 or ADA analysis is simply inappropriate unless and until such time as those issues may be properly before the court.”

The lawsuit was dismissed without prejudice.

The Silva family enrolled Ayden in a pre-kindergarten program with Catawba County Schools in February 2010 for 2010-11 year, stating on the form Ayden had a service dog, according to the lawsuit.

Catawba County Schools determined Chatham could not accompany Ayden to his pre-k class at Mt. View Elementary six days before class started.

His family said Ayden regressed without Chatham, unable to fall asleep at school during naptime without Chatham providing deep pressure, and that Ayden, “once again requires a ‘chewy’ — a heavy duty plastic item that he can chew to relieve aggression and anxiety — in the classroom and at home so he will not bite himself and his clothing. The separation is additionally eroding Chatham’s training and ability to effectively assist A.S. outside of school facilities.”

In November, the school began allowing Ayden’s family to pick him up around noon to allow him to spend time with Chatham.

On March 14, 2011, the family filed the lawsuit against Catawba County Schools. The suit claimed the school system discriminated against Ayden as a person with disabilities and prevented him from receiving the same services as other students, in violation of Section 504 of the federal Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA).

In May, Catawba County Schools filed a motion asking for the suit to be dismissed based on lack of subject matter jurisdiction — that the court had no authority to make a decision. The school system requested this based upon the Silvas failing to exhaust all administrative possibilities.

According to federal law, before a lawsuit can be filed for people seeking help under Assistance for Education of All Children with Disabilities, there must be an impartial due process hearing by the state or local education agency and an appeal to the state education agency for an independent, impartial review where the impartial hearing is conducted at the local education level.

By exhausting these possibilities, it allows the agencies to correct their own mistakes before going to federal court, as well as saving time and money, according to the court ruling.

“If a plaintiff fails to exhaust administrative remedies under IDEA (Individuals with Disabilities Education Act), a case brought under the ADA or Section 504 that is also cognizable under the IDEA is subject to dismissal,” Voorhees wrote.

The Silvas’ attorney is Holly Stiles with Disability Rights NC. She argued that separating Ayden from Chatham, even for a short time, would be detrimental. She said Chatham is the only thing keeping him from having “meltdowns.” His mother described meltdowns as, “self-injurious and aggressive behaviors that are very difficult to redirect, such as banging his head against the floor and other hard objects, biting himself and his clothing, drooling and pulling his own hair as hard as possible.”

Stiles said keeping Chatham at home while Ayden was at school would bond Chatham to Ayden’s mother, not Ayden.

But Voorhees said Stiles did not offer evidence showing the service dog would bond just with Ayden’s mother, particularly with five other siblings in the house.

“Plaintiff has not persuaded this court that the alleged harm is so severe as to excuse plaintiff from administrative exhaustion,” Voorhees wrote.

In addition, he said the Silva family could still pursue other avenues with Catawba County Schools under IDEA. If the Silvas were still not satisfied, they could then seek legal action under Section 504 of the Rehabilitation Act and Title II of the ADA.

Voorhees said he was satisfied, though, that Ayden had improved under Catawba County Schools’ education plan during the 2010-11 school year.

The teacher’s assessment said Ayden could be a leader for younger special needs students in school.

Voorhees said it is possible Chatham helps Ayden, but he could not rule in their favor at this point.

“It may be that the effectiveness of Chatham as a service dog for Plaintiff’s neurological problems would tend to be degraded by the absence of the dog during school hours,” Voorhees wrote in the memorandum and opinion. “It is, however, on the showing before the court, insufficient as a claim of hardship. In particular, it is insufficient to overcome the evidence supporting the very successful educational program put into place thus far for A.S. The latter has resulted in his marked progress educationally and socially by way of the current Individualized Education Plan (IEP) put into place under the IDEA.”

Catawba County Schools’ attorney Crystal Davis said she is uncertain whether the Silvas will seek any additional course of action.

“We have provided them with all the motions and claims that were in the lawsuit, and I feel confident Catawba County Schools has complied with it,” Davis said.

Stiles said the Silvas are left with three options: accepting the judge’s decision and taking no additional action, appealing the decision or pursing an administrative hearing with Catawba County Schools. Stiles said because the case is ongoing, she couldn’t comment on what the Silvas would do, but said she would next week.

“Of course we’re disappointed we couldn’t go forward at this time, but we feel Chatham must be able to go to school with Ayden,” Stiles said.

She said she hasn’t seen Ayden every day this summer, but said the increased time he has spent with Chatham during the summer has been beneficial.

Stiles couldn’t comment on whether Ayden was enrolled in Catawba County Schools this year. School begins on Thursday, Aug. 25.