The U.S. Congress enacted multiple antidiscrimination statutes enforcing the Equal Protection Clause of the 14th Amendment.
Yet, in "deference" to the state governments in their ability to handle their responsibilities to enact and enforce laws protecting health and safety of its residents, the U.S. Supreme Court created various "levels of scrutiny" in review of discrimination cases.
Duties and rights of states in that relation are guaranteed by the 10th Amendment of the U.S. Constitution, which states are increasingly using in lawsuits against President Trump, for example, asserting their right "to be left alone" in such decisions - in all aspects but federal aid, then they use the 10th Amendment to force the federal government to "voluntarily" give money to states who defy federal laws claiming their exclusive authority to act for protection of health of safety of their residents under the 10th Amendment - great examples of that inconsistent invocation of the 10th Amendment by the state is:
- claims of the states against President Trump asking the courts to recognize their 10th Amendment right to prevent the federal government from interfering with how states:
- give professional licenses to illegal aliens - whether they are or at not allowed to work in the U.S. by the federal government - see the recent two cases when
- New York issued a professional law license to an illegal alien Cesar Vargas who was given a temporary deferred deportation status (for 2 years, with a right to apply for extensions, but with extensions not guaranteed), and with an accompanying right to work by the federal government for the period of the deferred deportation status, and
- when California gave a professional license to practice law, over objection of President Obama's U.S. Department of Justice, to illegal alien Sergio Garcia who was not given a work authorization of deferred deportation status, and who, after having received the law license, engaged in a "motivational speaking tour" around the U.S., thus likely engaging in illegal work while prohibited to do so by the federal government - as was shown by the case when he was "uninvited" to speak to the students of a college prep school in Texas when he refused to sign forms showing his immigration status for tax purposes;
- declare their municipalities "sanctuary cities", thus harboring illegal aliens in violation of federal criminal and immigration laws.
- sue the federal government (as the City of San Francisco did) for withholding voluntary federal aid for those same programs that the states assert is their exclusive right under the 10th Amendment to control and enforce - and, if so, to finance also;
- condemn appointment of Betsy DeVos to the position of minister of the federal Department of Education that has no control whatsoever over schools - which are within the 10th Amendment right and duty for the states to control and finance; and
- condemn President Trump for deferring to the states in deciding trangender bathroom issues for state schools - which is also within state 10th Amendment authority to do.
Yet, at the same time as President Trump's enforcement of federal law in areas of his exclusive control (immigration policy), and his deference to the states in the states' area of exclusive control under the 10th Amendment (transgender bathroom policy in schools) meets with condemnation of the public - a condemnation not expressed with such vigor that similar or identical measures of President Obama or presidents before him - changes in the usual deference to the states by the U.S. Supreme Court and lower federal courts are not that prominent in the public's eye because court decisions are less discussed and less understood by the public.
Well, here enters the adorable Goldendoodle Wonder and the now 12-year-old girl #EhlenaFry whose parents sued her first school for refusal to allow her "service dog" upon the school premises because they already provided, as a reasonable accommodation to Ehlena Fry, a quadriplegic with cerebral palsy, a human aide.
Wonder's appearance before the watchful eye of the U.S. Supreme Court, a court that only takes 70 cases out of 8,000 filed per year, so the cases the court takes must be really, really important
- cancelled all previously existing precedents and legal standards of the U.S. Supreme Court on disability discrimination,
- created a dangerous precedent for
- public safety in school,
- rights of children other than those "served" by service dogs to be provided free and appropriate public education in a healthy environment,
- school liability for injuries of disabled and non-disabled children and school employees;
- a logistical nightmare for schools as to how now to accommodate not only disabled children, but also their "service animals", and
- and an increase in taxpayer financing of schools
So, let's look at the case which made the U.S. Supreme Court, the court that rejects the overwhelming majority of cases and usually uses its time more on trips and speeches than on actual work, pick this case for review while rejecting other cases, put the law on the back shelf and decide a case for a dog, a girl and her parents on the basis of sympathy and publicity alone.
Under the rational basis of review, if the court can find any "reasonably conceivable" justification for denial of a certain benefit, the claim of discrimination is dismissed.
Let's apply the rational basis scrutiny test to the case of Ehlena Fry (who is now 12, so this frivolous case has been litigated in courts for 7 years, while there was no case to begin with),
her parents' Goldendoodle Wonder that the parents tried to foist upon the school as a "service animal" for their 5-year-old daughter who has cerebral palsy. By the way, I also wonder, why the girl's name had to be carefully protected and taken out of the caption of the case when her full name and face was paraded for the media anyway.
First of all, according to the U.S. Supreme Court's recitation of facts in the case, the school DID provide a reasonable accommodation to the girl - the same as the school provided to all other disabled children in her situation - a HUMAN aide.
Once again, this was the school's actual reasoning to deny Ehlena Fry's parents desire to have a large dog accompany their daughter in school: that "the human aide provided as part of E.F.'s individualized education program rendered the dog superfluous".
Such accommodation was a reasonable accommodation required by American with Disabilities Act and by the Individuals with Disabilities Education Act.
Provision of such reasonable accommodations should have, in and of itself, rendered this whole 7-year litigation frivolous and should have had the court impose sanctions and attorney fees upon the girl's parents and attorneys involved in litigation - as courts liberally do in civil rights cases that they find to be without basis.
There is, simply put, NO CASE.
A reasonable accommodation was provided for the girl, which withstood rational basis review, case closed.
That another school DID allow the use of the "service dog" on the school grounds is the decision made by that school's principal, who agreed to incur the additional liability, logistical and health problems for the school and the school's children and personnel - that was the personal decision of the principal and not the law.
The U.S. Supreme Court did not ask a lot of pertinent questions which, whether they were or were not actually provided as a reason for the school's decision denying permission to use the service dog on the school premises, could nevertheless be considered by the court and used to dismiss the case with sanctions, as frivolous:
- is the human aide the same accommodation as provided to other children? If it is, and "service dog" accommodation was not usual for that school to provide - which is obvious in this case - the rational basis review once again would prevail: the school did what it usually did for all children with similar disabilities, and there is no actionable equal protection or discrimination claim at all;
- is the service dog provided in addition or instead of human aide accommodation (and especially in the case of a "spastic quadriplegic cerebral palsy" making the dog insufficient as a sole provider of care)? - apparently, that was the case claimed because the dog supposedly was to pick up items from the floor, open doors, and help the girl maintain balance, including the transfer on and off the toilet seat - replacement of the human aide with the dog in carrying out such tasks presented:
- a safety issue for the child who could nevertheless fall off the toilet seat and get hurt, and
- a liability issue for the school that would be sued for the child's injury;
- would the presence of a dog on the school grounds be prohibited by the school's insurance policy? - if it was, that is a rational basis, and the case is, once again, closed;
- who was going to provide and actually give to the dog food, water and take the dog out to go to the bathroom? - if it was an extra duty for the school personnel, it was reasonable for the school to deny such an accommodation;
- a dog may suffer from dehydration and become antsy and/or aggressive if he does not get water or if the dog was not fed that day, or not walked that day, another safety concern passing the rational basis review;
- where was the dog supposed to go to the bathroom - where other children play, in the schoolyard?
- are dogs allowed into the school cafeteria by public health laws? - if not, the case is closed.
- What is the guarantee that the dog will not:
- slobber upon;
- knock down causing injuries - it is a large dog;
- trigger an allergic reaction;
- distract from studies
- whether to disobey the order of what it must do on remand, because the U.S. Supreme Court usurped authority of the U.S. Congress to define jurisdiction of the Circuit court and ordered the Circuit Court to do what it cannot do within its jurisdiction; or
- to follow the U.S. Supreme Court as a mandatory precedent, but then violate the statute enacted by the U.S. Congress under Article I of the U.S. Constitution defining jurisdiction of the Circuit Court.
- what is the purpose of parents sending their children to school other than getting the free and appropriate public education (FAPE); and
- if that is the only reason why children go to school, what else can a discrimination claim against the school be about in denial of "comfort accommodation" in educational process (where gender, sex or racial discrimination was not invoked) OTHER than tied in with educational process?