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New Jersey lawyer focusing on special education law and employment law

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Carter’s Service Dog Case

In a previous blog article (“Are IEPs Necessary for Service Animals?“), I argued that a child with a disability does not need an Individualized Educational Plan (“IEP”) in order to bring a service dog to school. At the time I wrote and published that article, there was an Illinois state case pending which involved a School District that refused to allow Carter, a five year child with autism, to bring his service dog to school (Kalbfleisch v. Columbia Community Unit School District Unit No. 4).

In that same blog article, I mentioned that the Columbia School District had argued that Carter could not bring his service dog to school because it was not in his IEP. I wondered how a judge would respond to that argument.

On December 17, 2009, Judge Wexxsten issued an opinion, granting a preliminary injunction permitting Carter to bring his service dog to school.

Put simply, a preliminary injunction is an order to do something or not to do something. It is a quick temporary remedy until the merits of the case are decided. Think of it as a band-aid that doesn’t stick a long time. In this case, the judge issued an order allowing Carter to bring his service dog to school. Carter’s right to bring his service dog to school is temporary, however, because the preliminary injunction does not answer the question, “Does Carter have a legal right to be accompanied by his service dog to school?” If the answer is “Yes,” then Carter will have a right to bring his service dog to school. If the answer is “No,” then Carter will not be able to bring his service dog to school.

In order to win a motion for a preliminary injunction, the moving party (e.g., Carter) must be clear and persuasive. In addition, the moving party must show all four basic elements to win the motion, in essence: (1) there is a right to do or not to do something; (2) harm could be caused if the motion is not granted; (3) there is no alternative; and (4) the moving party is likely to win on the merits.

Judge Wexxsten found that Carter was successful in arguing each of these four elements. Judge Wexxsten provided a clear and concise analysis, finding that Carter had a right to a service dog; that Carter would be harmed if he could not bring his service dog to school; that Carter had no alternative to having a service dog; and that Carter was likely to win on the merits.

Judge Wexxsten’s opinion is worth the read. A copy of the Kalbfleisch opinion may be downloaded here.

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