UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ROCHESTER

UNITED STATES OF AMERICA,

Plaintiff,

v.

GATES-CHILI CENTRAL SCHOOL DISTRICT,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF THE UNITED STATES MOTION FOR SUMMARY JUDGMENT

Case No. 15-cv-6583-CJS

For five years, Defendant Gates Chili Central School District (the District) refused to allow D.P.,1 a student with disabilities, to use her service dog in school unless D.P.’s parent provided an additional dog handler to accompany the dog throughout the school day.  The issue in this case is whether the District’s additional-handler requirement violated Title II of the Americans with Disabilities Act (ADA) and its implementing regulation.  Under a straightforward application of the regulation, the answer is yes. 

As this Court held in its prior ruling in this case, the District was required to permit D.P. to use her service dog in school and to act as the dog’s handler so long as:  (1) the service dog was under her “control” in school; and (2) the District was “not responsible for the care or supervision” of the dog.  (Order Denying Def.’s Mot. Summ. J. 10, ECF No. 28 (citing 28 C.F.R. § 35.136).)  Aside from these two conditions, the Court made clear that the District could only restrict D.P.’s service animal access if the dog was not housebroken, or if the dog was out of control and D.P., as the handler, failed to bring the dog back under control.  Id.

Now, after discovery, the undisputed facts establish that the service dog was always under D.P.’s control during the school day.  D.P. controlled the dog by accompanying it everywhere and by being physically connected by a tether.  D.P. could issue nonverbal commands to her service dog, and the dog was highly trained to respond to D.P., her signals, gestures, and needs.  Although the additional handler occasionally chose to speak to the dog, the dog did not require any commands to remain under D.P.’s control.  Indeed, in the five years that D.P. was required to have an additional handler for her dog (2012-2017), the service dog was never “out of control” in school.  The dog was also fully housebroken and did not need any care or supervision from the District (e.g., feeding, walking, grooming, veterinary care, watching, or directing).

Based on these facts alone, D.P. was the handler of her service dog under the ADA and had a right to use her service dog in school.  The District had no permissible grounds for requiring an additional handler.  By imposing that requirement under these circumstances, the District discriminated against D.P. because of her disability.  Accordingly, the Court should grant the United States’ motion for summary judgment.

  1. PROCEDURAL BACKGROUND

    The United States commenced this civil rights action in September 2015.  (Compl. ¶¶ 1, 36, ECF No. 1.)  Shortly after the complaint was filed, the District moved for summary judgment, claiming that school districts are, as a matter of law, excused from ever providing any service animal–related assistance to a student, no matter how small or reasonable the request.  (Def.’s Mot. Summ. J. 2, ECF No. 10.)  The District further argued that D.P. could not be the handler of her service dog because of her disabilities.  (Def.’s Mem. Law Supp. Mot. Summ. J. 5, ECF No. 10-5.)  The Court denied the District’s motion.  (Order 12-13, ECF No. 28.)

    Applying the service animal provision of the Title II regulation (28 C.F.R. § 35.136), the Court was clear that, while the ADA does not require the District to provide “handling services” to the dog, the District must provide some assistance to D.P. in using her service dog at school, such as help with untethering the dog from D.P.  (Order 11-13.)  At oral argument, the District said it would assist D.P. with untethering, but refused to provide any other assistance to her if it related to her service dog.  (Order 12.)  For example, the District asserted that it was not required to prompt D.P. to issue commands to the dog, even though this assistance only involved speaking to D.P., not her service dog.  (MSJ Hr’g Tr. 40:12-24, ECF No. 25.)  As the Court noted, such assistance “pertains not to the dog, but to the child.”  (MSJ Hr’g Tr.38:23-24.)

    In denying Defendant’s motion, the Court discussed the meaning of “control” under the regulation, and cited affirmatively to the holding in Alboniga v. School Board of Broward County Florida, 87 F. Supp. 3d 1319, 1342 (S.D. Fla. 2015), that “normally, tethering a service animal to a wheelchair of a disabled person constitutes ‘control’ over the animal by the disabled person, acting as the animal’s ‘handler.’”  (Order 11.)  Ultimately, the Court denied the District’s motion because it found that a material issue of fact existed as to “whether D.P. can or cannot ‘handle’ her service dog” within the meaning of the Title II regulation.  As long as District staff were not required to issue commands to the dog to keep it under control, the Court held that D.P. could be considered in control of her service dog, in which case the additional-handler requirement violated the ADA:

    If [the service dog] is tethered to D.P. and the only assistance she needs is to untether her from the dog, then under the logic employed by the [Alboniga Court] and the District’s concession [regarding assistance with untethering], D.P. can be considered to be in control of Hannah.  On the other hand, if D.P. requires school district personnel to actually issue commands to Hannah, as opposed to occasionally reminding her to do so, then D.P. cannot be considered in control of her service dog.

    (Order 12-13.)  The Court’s holding draws an important distinction between commands that are required for control and commands that are optional or were merely issued by choice.  (See MSJ Hr’g Tr. 44:6-12.) 

    Following discovery, the United States now moves for summary judgment.

  2. FACTUAL BACKGROUND
  3. D.P. was a student in the District from September 2010, when she started preschool, until August 2017, when she completed fourth grade.  Pl.’s L.R. 56 Statement Material Facts ¶ 5 (hereinafter, “Pl.’s SMF”).  During this time, D.P. lived with her mother, H.P., and her sister in the basement of her grandparents’ house.  H.P. Decl. ¶ 9.  D.P. has Angelman Syndrome,2 as well as diagnoses of autism, epilepsy, asthma, and hypotonia.  Pl.’s SMF ¶ 3.  Although D.P. is non-speaking, she communicates through a variety of means, including through her assistive technology device, hand gestures, and physical manipulation of people and objects.  Pl.’s SMF ¶ 4; Pl.’s Ex. A at 7, District IEP (May 2011); Pl.’s Ex. B at 4, 6, Hilton IEP (Nov. 2017); Pl.’s Expert Decl. (Stephen N. Calculator, Ph.D.) ¶ 4 & Attach. at 7 (hereinafter, “Pl.’s Expert Report”).  As assessed by one of the leading experts on Angelman Syndrome and communicative disorders, Dr. Stephen Calculator, D.P. is high functioning compared to other individuals with her diagnosis, including with respect to her communication and practical life skills.  Pl.’s Expert Decl. (Calculator) ¶ 4; Pl.’s Expert Report at 6-7.

    When D.P. is at home, she is cared for by her family, as well as a Medicaid attendant or other caregiver.  Horozko Decl. ¶ 1; H.P. Decl. ¶ 1.  At school, the District assigned D.P. a 1:1 aide to provide direct, individualized assistance with all of her daily activities, including regularly prompting D.P. to complete tasks, helping her get water and wash her hands, and assisting her with her shoes, coat, and other clothing.  (Am. Answer ¶ 26, ECF No. 7); Pl.’s Ex. A at 8; Def. 30(b)(6) Dep. (Ward) 17:10-14, 250:20-23; Carroll Dep. 58:21-25; Cook Dep. 186:19-187:10; Schlumpf Dep. 48:13-49:13, 90:24-91:20, 101:1-102:7; Horozko Decl. ¶ 8; H.P. Decl. ¶ 12.  District staff provided similar assistance to D.P.’s classmates, including helping students use their wheelchairs, special equipment, and assistive devices.3  See BOCES 30(b)(6) Dep. (Martorana) 108:7-25, 210:17-25, 214:8-12, 297:14-298:17; Carroll Dep. 62:14-63:3, 110:4-18, 180:2-8, 184:1-7; Cook Dep. 129:18-24; H.P. Decl. ¶ 12.  In 2014, the District also began providing D.P. with a 1:1 nurse due to her seizure disorder.  (Am. Answer ¶26, ECF No. 7); Def. 30(b)(6) Dep. (Ward) 250:20-23; Horozko Decl. ¶ 8; H.P. Decl. ¶ 12.

    1. D.P. and Hannah: The Service Dog Team
    2. In January 2011, during her first year of preschool, D.P. obtained a service dog to help manage the manifestations of her disabilities.  Denyer Decl. ¶¶ 4, 7; H.P. Decl. ¶¶ 2-3.  D.P.’s service dog, Hannah, received 1,250 training hours by a professional trainer, including three months just on responding to D.P. and her specific needs.  Denyer Decl. ¶ 3.  D.P.’s service dog was trained that D.P. was her “person”—to serve and to follow.  Id. at ¶¶ 4-7.To this end, Hannah was trained to stay by D.P.’s side and provide mobility support for D.P.’s core body weakness caused by hypotonia.  Id. at ¶ 7.  For D.P.’s autism, Hannah was trained to prevent wandering (elopement), to limit meltdowns, and to disrupt stimming (repetitive body movements).  Id.  Hannah could also detect and alert others to an oncoming seizure.  Id.;Horozko Decl. ¶ 3; H.P. Decl. ¶ 7.  During a seizure, Hannah could stabilize D.P.’s body.  Denyer Decl. ¶ 7; Horozko Decl. ¶ 3.

      Because of her service dog, D.P.’s teachers and aides no longer had to constantly put their hands on D.P. (for example, to calm or stabilize her).  Pl.’s Ex. A at 9, District IEP (May 2011); Cook Dep. 187:15-22; Horozko Decl. ¶ 2; H.P. Decl. ¶¶ 6-7.  In addition, D.P. began walking independently around school with her service dog instead of being pulled in a wagon or pushed in a medical stroller—something many thought would never be possible due to her hypotonia.  Cook Dep. 242:17-243:21; Horozko Decl. ¶ 2; H.P. Decl. ¶¶ 6-7; see also Pl.’s Ex. C, Special Educ. Rel. Serv. Summ. (May 16, 2013).  As school staff observed, “[D.P.] has flourished and her independence has grown since Hannah joined the team.”  Pl.’s Ex. A at 2; see also id. at 6, 9; Def. 30(b)(6) Dep. (Ugine) 73:4-17.

      D.P. and Hannah were always together in school.  Pl.’s SMF ¶ 13.  D.P. and Hannah were tethered in school by a leash that connected from the dog’s harness to a belt around D.P.’s waist.  Id. at ¶ 14; Pl.’s Ex. A at 8; Denyer Decl. ¶ 9; Horozko Decl. ¶¶ 7, 9; H.P. Decl. ¶¶ 13-14.  D.P. could be untethered from her service dog by unhooking the leash from D.P.’s belt.  Denyer Decl. ¶ 9; Horozko Decl. ¶ 11; H.P. Decl. ¶ 13.  When untethered, Hannah would usually lay on the ground where she could see D.P.  Cook Dep. 110:9-111:8; Bevan Decl. ¶¶ 14-15; Denyer Decl. ¶¶ 4, 9; Horozko Decl. ¶¶ 9, 16; Romano Decl. ¶¶ 9-10; see also Schlumpf Dep. 94:1-7.  Hannah remained with D.P. at all times in school—whether walking with her in the hallways, accompanying her to the restroom, or laying on the floor nearby.  Pl.’s SMF ¶ 13.D.P. never left her dog unattended.  Id.  When D.P.’s 1:1 aide (or later, the additional handler) left the room or took a break, the service dog remained with D.P.  Carroll Dep. 164:17-166:20; Schlumpf Dep. 53:1-24; Horozko Decl. ¶ 10.  From January 2011 to August 2012, D.P. successfully used her service dog in school with no additional handler provided by her family.  Def. 30(b)(6) Dep. (Ward) 99:7-10; H.P. Decl. ¶ 5.

    3. The District Would Not Permit D.P. to Attend School with Her Service Dog, Unless She Provided an Additional Handler
    4. Days before D.P. started Kindergarten, the District notified her mother that D.P. could no longer use her service dog in school unless her family provided an additional handler for the dog.  Pl.’s SMF ¶ 7; Def. 30(b)(6) Dep. (Ward) 99:7-100:16; Horozko Decl. ¶ 5; H.P. Decl. ¶ 8.  Although D.P.’s mother objected to the new requirement, she hired Jennifer Horozko, one of D.P.’s Medicaid attendants, to serve as the additional handler in school, because the dog was critical to D.P.’s health and safety and played a significant role in her development and engagement.  Pl.’s SMF ¶ 8; Horozko Decl. ¶ 5; H.P. Decl. ¶ 8.  As a result, there were at least three adults with D.P. in school at all times—D.P.’s 1:1 aide, D.P.’s 1:1 nurse or other District staff, and Ms. Horozko.  Def. 30(b)(6) Dep. (Ward) 250:13-23; Carroll Dep. 163:15-22, 164:10-16; Schlumpf Dep. 55:4-20; Horozko Decl. ¶ 8; H.P. Decl. ¶ 12.

    5. Did Not Need an Additional Handler for Her Service Dog in School
    6. By all accounts, D.P.’s service dog was very well-behaved in school and never caused a problem, even when the additional handler was out of the room.  See, e.g., Donlon Dep. 104:2-4 (“[T]he dog was very well-behaved and I didn’t even notice the dog was there most of the time.”); Carroll Dep. 166:16-23 (“Q. Have you ever had any problem with the service dog while Jennifer Horozko was out of the room?  A. No.”); Whitcomb Dep. 15:10-23; Bevan Decl. ¶¶ 13, 15, 17; Denyer Decl. ¶¶ 3-6, 9-10; Horozko Decl. ¶¶ 7, 16; Romano Decl. ¶¶ 9-12.  In the five years the District required an additional handler for the dog (2012-2017), Hannah never bit, barked, jumped on anyone, defecated, urinated, damaged school property, or was otherwise “out of control.”  Pl.’s SMF ¶¶ 11, 18-21.  She was housebroken and trained to go all day without relieving herself.  Id. at ¶ 11; Carroll Dep. 73:14-20; Denyer Decl. ¶ 8; Horozko Decl. ¶ 15; H.P. Decl. ¶ 3; Romano Decl. ¶ 10.  Hannah also did not require any exercise, food, grooming, or veterinary care during the school day.  Pl.’s SMF ¶ 12.  While D.P. needed some assistance to fill a pitcher of water, D.P. can and did pour the water into a bowl for Hannah when the dog needed it.  Carroll Dep. 107:4-10; Kurcoba Dep. 82:5-10; Romano Dep. 33:20-34:6; Schlumpf Dep. 131:1-21; Romano Decl. ¶¶ 3, 6; Horozko Decl. ¶ 15. 

      The amount of assistance D.P. needed with her service dog was always minimal, and it diminished even more over her time in the District.  Schlumpf Dep. 141:7-24; Denyer Decl. ¶¶ 8, 16-17; Horozko Decl. ¶ 11; H.P. Decl. ¶ 13.  Early on, D.P. was tethered and untethered from her service dog by an adult.  Def. 30(b)(6) Dep. (Ward) 113:4-18; Schlumpf Dep. 119:9-25; Horozko Decl. ¶¶ 11; H.P. Decl. ¶ 13.  Around second or third grade, D.P. learned how to tether herself to Hannah.  BOCES 30(b)(6) Dep. (Martorana) 207:5-6; Carroll Dep. 99:13-19; Schlumpf Dep. 84:4-85:6, 90:20-23; H.P. Decl. ¶ 13.  For safety, D.P. was never taught to untether herself, and D.P.’s mother asked the District to keep D.P. tethered to her service dog at all times.  H.P. Decl. ¶¶ 13-14.  Likewise, D.P. and her service dog were tethered at all times in other public places outside of school.  Id. at ¶ 14; Denyer Decl. ¶ 9.

      As early as Kindergarten, D.P. started issuing commands to her service dog using physical manipulation of the dog, harness, or tether, and later through hand gestures and other signals.  See, e.g.,Cook Dep. 129:6-15; Donlon Dep. 105:1-7, 111:6-23; Kurcoba Dep. 81:25-82:4; Schlumpf Dep. 71:5-9, 85:10-24, 93:2-14, 95:1-10; Denyer Decl. ¶ 11; Horozko Decl. ¶¶ 11-14; H.P. Decl. ¶¶ 15-17.  For example, D.P. pulled on the handle of Hannah’s harness to indicate “let’s go.”  Pl.’s SMF ¶ 15.By second grade, the additional handler observed D.P. put her hand in front of Hannah to indicate “wait,” pat Hannah’s posterior to get the dog to sit, and push down on Hannah or pat the floor to get the dog to lay down.  Horozko Decl. ¶ 14; see also Denyer Decl. ¶ 11; H.P. Decl. ¶ 16.  In later years, D.P. also issued commands to the dog by altering tension in the leash to direct the dog to “go,” “stop,” and “stay.”4  Pl.’s Expert Report at 8.  D.P. sometimes needed prompting to issue commands—like any child, how much prompting varied.  Pl.’s SMF ¶ 16; BOCES 30(b)(6) Dep. (Martorana) 214:8-16, 297:5-298:17; H.P. Decl. ¶ 16.  Prompting D.P. (such as saying “get your dog”) took seconds to do and came from the additional handler and classroom staff.  Carroll Dep. 89:10-19; Cook Dep. 129:6-15; Donlon Dep. 111:6-23; Kurcoba Dep. 82:5-19; Schlumpf Dep. 85:10-24; 90:20-91:20; Bevan Decl. ¶ 12; Horozko Decl. ¶¶ 11-12, 14; Romano Decl. ¶ 3; Whitcomb Decl. ¶ 11. 

      Even if D.P. did not issue a direct command or respond to prompting right away, her service dog was trained to follow her, stay near her, and respond to environmental cues (e.g., daily routines, the teacher’s instructions to the class, D.P.’s behavior and actions).  Pl.’s SMF ¶¶ 10, 13, 17; Bevan Decl. ¶¶ 13-15; Denyer Decl. ¶¶ 4-7, 12-14; Horozko Decl. ¶¶ 7, 9, 12-13, 17; H.P. Decl. ¶¶ 3, 15-17; Romano Decl. ¶¶ 7, 9-11.  For example, if D.P.’s 1:1 aide said “get your dog,” the service dog would often stand up in response.  Schlumpf Dep. 93:2-4, 94:16-25; Denyer Decl. ¶¶ 13-14; Horozko Decl. ¶¶ 7, 12, 17; Romano Decl. ¶ 7.  Other times, if the class started to get ready for a transition or the teacher said “time to go to gym,” then D.P. and her dog would both stand up.  Carroll Dep. 89:5-9; Cook Dep. 129:18-24, 143:5-19; Schlumpf Dep. 93:2-4, 94:16-25; Denyer Decl. ¶ 13; Horozko Decl. ¶¶ 7, 12; Romano Decl. ¶ 7.  If D.P stood up, her dog stood up.  Cook Dep. 132:1-11; Horozko Decl. ¶ 13; H.P. Decl. ¶ 15.  If D.P. started walking, the dog would walk; if D.P. stopped, her dog stopped.  Donlon Dep. 105:11-16; Schlumpf Dep. 91:23-25; Horozko Decl. ¶ 13.  If D.P. sat, her dog sat or laid down.  Schlumpf Dep. 93:12-94:7; Horozko Decl. ¶ 13; H.P. Decl. ¶ 15. 

      Hannah was also trained to perform numerous tasks related to D.P.’s disabilities without any direction or command.  Schlumpf Dep. 91:23-25; Devan Decl. ¶13; Denyer Decl. ¶¶ 4-7, 9-10, 12-14; Horozko Decl. ¶¶ 7, 9, 12-13, 17; H.P. Decl. ¶ 15; Romano Decl. ¶¶ 7, 9-11.  For example, no command was given when the dog was alerting to a seizure, asthma, or irregular breathing.  Denyer Decl. ¶¶ 4, 7, 12; Horozko Decl. ¶ 3; H.P. Decl. ¶ 7.The service dog was also trained to prevent D.P. from eloping into danger without any command.  Denyer Decl. ¶¶ 4, 7, 12.  Even when D.P. was in the throes of a seizure, having a meltdown, or otherwise dysregulated, her dog was trained to behave appropriately and do its job.  Id.; Cook Dep. 198:7-24; Bevan Decl. ¶ 16; Horozko Decl. ¶¶ 7, 13; H.P. Decl. ¶ 15; Romano Decl. ¶ 11.  Indeed, the additional handler, Ms. Horozko, spent most of her time at a table in the back of the classroom with little to do.  Carroll Dep. 186:18-24; Horozko Decl. ¶¶ 7, 17.  According to D.P.’s teacher and 1:1 aide, Ms. Horozko spent between 90 to 100 percent of the school day on her cell phone or her computer.  Carroll Dep. 171:5-22; Donlon Dep. 122:17-20; Schlumpf Dep. 139:23-140:10; Horozko Decl. ¶ 17. 

    7. D.P.’s New School District Does Not Require an Additional Handler
    8. In 2017, H.P. and her daughters moved to the Hilton Central School District (Hilton).  Horozko Decl. ¶ 19; H.P. Decl. ¶¶ 20-22; Schaffer Decl. ¶ 2.  In August 2017, Hilton staff spent approximately forty-five minutes meeting with D.P., her mother, and Hannah and observed D.P. and her service dog safely navigate a Hilton school.  Bevan Decl. ¶ 6; H.P. Decl. ¶ 21; Whitcomb Decl. ¶ 4. 

      At Hilton, D.P. was recognized as her service dog’s handler from the beginning.  Pl.’s Ex. B at 8, Hilton IEP (Nov. 2017); Bevan Decl. ¶¶ 11-12; H.P. Decl. ¶ 23; Romano Decl. ¶ 3; Whitcomb Decl. ¶¶ 11-12.  D.P. was expected to and did perform any necessary handling tasks, sometimes independently and sometimes with prompting from her 1:1 aide.  Pl.’s Ex. B at 8; Romano Dep. 32:6-25, 38:12-25; Schaffer Dep. 31:3-4; Bevan Decl. ¶ 12; H.P. Decl. ¶ 23; Romano Decl. ¶¶ 3, 6-7. In addition, much like when she was a student in the District, the service dog often responded to D.P.’s teacher and other staff telling D.P. when or where to go.  Romano Decl. ¶ 7.  Hilton staff reported that the service dog was never in the way, never interfered with classroom duties or other student’s learning, and never posed a safety issue.  Bevan Decl. ¶¶ 13, 17-18; Romano Decl. ¶ 12; Schaffer Decl. ¶¶ 7, 10.

      In the two years since D.P. left the District, Hannah retired and passed away.  H.P. Decl. ¶ 24.  D.P. continues to use a new service dog in school with no additional handler.  Id. at ¶ 23.

  4. LEGAL BACKGROUND
    1. The ADA Provides Broad Access to Individuals Using Service Animals
    2. Title II of the ADA prohibits discrimination on the basis of disability in all “services, programs, and activities” of public entities, including public school districts.  See 42 U.S.C. § § 12131-12132; 28 C.F.R. § § 35.104, 35.130(a).  Under Title II, students with disabilities have the right to nondiscrimination, equal opportunity, and program access.  42 U.S.C. § § 12102, 12132.  Underlying these rights is the right to choose how to manage one’s disability, including by using a service animal. 

      As directed by Congress, the Department of Justice (DOJ) issued regulations in 1991 that implement Title II’s broad non-discrimination mandate, including a requirement that public entities “make reasonable modifications in policies, practices, or procedures” when necessary to avoid discrimination on the basis of disability.  28 C.F.R. § 35.130(b)(7).  This generally required public entities to reasonably modify “no-pets” policies to admit service animals.  Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 749 (2017) (citing 28 C.F.R. § 35.130(b)(7) and Alboniga, 87 F. Supp. 3d at 1345).  To further clarify this requirement, in 2010 DOJ issued a revised Title II regulation, which contains specific provisions requiring service animal access in public entities, such as schools.  28 C.F.R. pt. 35, app. A § 35.136 at 628 (2018).

    3. The ADA Regulation Governs Service Animal Access
    4. Under the Title II regulation, permitting a person with a disability to use a service animal is generally reasonable.  See 28 C.F.R. § 35.136(a).  Further, the Title II regulation requires a school district to affirmatively modify policies, practices, and procedures when needed to permit a student with a disability to use her service animal in school.  28 C.F.R. § 35.136(a).  The appendices to the regulation explain that 28 C.F.R. § 35.136 was intended to provide “the broadest feasible access to individuals with disabilities and their service animals,” while permitting public entities to “exclude a service animal in certain circumstances where the service animal fails to meet certain behavioral standards.”  28 C.F.R. pt. 35, app. A § 35.136 at 627-28 (2018).  To this end, the Title II regulation provides:

       

      (b) Exceptions.  A public entity may ask an individual with a disability to remove a service animal from the premises if—(1) The animal is out of control and the animal’s handler does not take effective action to control it; or (2) The animal is not housebroken.

      ***

      (d) Animal under handler’s control.  A service animal shall be under the control of its handler.  A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

      (e) Care or supervision.  A public entity is not responsible for the care or supervision of a service animal. 

      28 C.F.R. § § 35.136(b), (d), (e).  Aside from these three provisions, a school district generally must permit a student with a disability to use a service dog in school without imposing additional requirements.5  See id. § 35.136(a); Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 119 (3d Cir. 2018), reh'g denied (Sept. 12, 2018); see also 28 C.F.R. § 35.136(h) (“A public entity shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets.”). 

    5. Summary Judgment Standard
    6. Summary judgment must be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).  Only disputes over facts that “might affect the outcome of the suit under the governing law” will preclude summary judgment.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003).  To show such a dispute, the non-moving party must present admissible evidence sufficient to support a jury verdict in its favor.  Anderson, 477 U.S. at 249.  The non-moving party “may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence.”  D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998).  Any inferences drawn by the court must be reasonable.  See id.; Murray v. Nat’l Broad. Co., 844 F.2d 988, 992 (2d Cir. 1988). 

  5. ARGUMENT
  6. The District violated Title II of the ADA by imposing requirements on D.P.’s use of her service dog that exceed those permitted by the statute and applicable regulation.  Under 28 C.F.R. § 35.136, the District was required to permit D.P. to use and handle her service dog in school so long as:  (1) the service dog was under her “control” in school; and (2) the District was “not responsible for the care or supervision” of the dog.  28 C.F.R. § 35.136(d)-(e); see also (Order 10, ECF No. 28.)  D.P. and her service dog satisfied these conditions, and it is undisputed that the dog was housebroken and was never “out of control” in five years.  The District thus violated the ADA by refusing to permit D.P. to use her service dog in school unless her family provided an additional handler for the dog.  

    Prior to discovery, this Court held that there was a dispute of material fact about whether D.P. required District staff to “control” her service dog for her (for example, by issuing commands to the dog).  (Order 12-13.)  Conversely, the Court held that if the dog was under D.P.’s control, she was the dog’s handler.  See id.  After discovery, the undisputed facts establish that the service dog was always under D.P.’s control in school.  It is undisputed that D.P. and her dog were always together in school and were physically connected by a tether.  The dog was trained to follow and serve D.P.  They were a team and functioned as a unit.  Accordingly, no verbal commands were required to keep the dog under D.P.’s control.  Pursuant to the Court’s order, requiring an additional handler under these circumstances violated D.P.’s right to use her service dog in school, which is disability discrimination under the ADA.6 

    1. The Service Dog Was Under D.P.’s Control During the School Day

      As this Court previously found and the District agreed, the Title II regulation clearly contemplates that the person with a disability is typically the handler of their own service dog.  (MSJ Hr’g Tr. 48:11-13, ECF No. 25) (“Obviously, the way the [regulation] is written, 136, it envisions pretty clearly that the person with the disability is the handler.”); (Def.’s Mem. Law Supp. Mot. Summ. J. 3, ECF No. 10-5) (“It is obvious that the assumption [under the regulation] is that the individual with a disability is the handler.”) (emphasis in original).  The same is true in this case:  D.P. was the handler of her service dog in school, and the dog was under her control as required by the regulation.  See 28 C.F.R. § 35.136(b) & (d). 

      The regulation and case law specifically identify tethering as a primary means for the handler to exercise “control” over a service dog.  See 28 C.F.R. § 35.136(d).  Even absent tethering, the handler may keep the service dog under control through any “other effective means,” including through the use of voice controls, signals, or gestures, as well as through the handler’s mere presence.  See idIndeed, D.P.’s service dog was highly trained to assist, follow, and respond to her without any verbal commands being issued.  See Pl.’s SMF ¶¶ 10, 13, 15-17; Part II.C supra.  And it is undisputed that D.P.’s service dog was never “out of control” within the meaning of the regulation.  Pl.’s SMF ¶¶ 18-21; Part II.C supra. 

      1. D.P. Was Tethered to Her Service Dog Throughout the School Day
      2. Tethering is one of the means of controlling a service dog expressly identified in the regulation:  “A service animal shall be under the control of its handler.  A service animal shall have a harness, leash, or other tether. . . .”  28 C.F.R. § 35.136(d) (emphasis added).  The meaning of this provision is quite clear:  a service dog may be controlled by its handler using a harness, leash, or other tether.7  Federal courts have also recognized that tethering is a form of “control.”  See Alboniga, 87 F. Supp. 3d at 1342 (finding that “[t]he complete language of the regulatory provision . . . explicitly permits tethering as handling”); Riley v. Sch. Admin. Unit #23, No. 15-CV-152-SM, 2015 WL 9806795, at *9-10 (D.N.H. Dec. 22, 2015) (holding that tethering constitutes control under § 35.136 and quoting Alboniga). 

        In its prior motion for summary judgment, the District argued that tethering was not sufficient to establish control under the ADA.  But this Court rejected that argument, saying “[t]he District’s argument is undercut by the holding in Alboniga[.]”  (Order 11, ECF No. 28.)  In Alboniga, the court found that a six-year-old child who used a wheelchair controlled his service dog by being tethered to the dog in school.  Alboniga, 87 F. Supp. 3d at 1342 (“[N]ormally, tethering a service animal to the wheelchair of a disabled person constitutes ‘control’ over the animal by the disabled person, acting as the animal’s ‘handler.’”).  The court held that the child controlled his service dog through tethering, regardless of the child’s intellectual disability, seizure disorder, physical impairments, or the fact that he needed “care and support for all aspects of daily living.”  Id. at 1323, 1341-42. 

        D.P. similarly exercised control of her service dog by being tethered to her dog in school.  D.P. and her service dog were tethered throughout the school day with only minor exceptions, such as for parts of gym class.  Pl.’s SMF ¶ 14.  The service dog stayed close to and followed D.P. everywhere.  See Pl.’s SMF at ¶¶ 13, 17; Schlumpf Dep. 91:23-25; Denyer Decl. ¶¶ 5-6, 9-14; Horozko Decl. ¶¶ 7, 9-10, 13-14; H.P. Decl. ¶¶ 15-16.  When untethered, Hannah would generally lay on the ground where she could see D.P.  Cook Dep. 110:9-111:8; Schlumpf Dep. 94:1-7; Bevan Decl. ¶¶ 14-15; Denyer Decl. ¶¶ 4, 9-10; Horozko Decl. ¶¶ 9, 16; Romano Decl. ¶¶ 9-10.  As the dog’s trainer explained, D.P.’s service dog was trained to be invisible in public and to do its job of serving and following D.P. without needing to be corrected or directed.  Denyer Decl. ¶ 10; see also Donlon Dep. 104:2-4 (“[T]he dog was very well-behaved and I didn’t even notice the dog was there most of the time.”). 

      3. D.P. Also Controlled Her Service Dog Using Signals and Other Effective Means

        D.P. issued commands to her service dog through physical manipulation of the dog, hand signals, and other gestures.  Although the regulation does not require a handler to issue commands to the service dog in order to control it, voice control and signals are another permissible means to establish control under the regulation.  See 28 C.F.R. § 35.136(d) (where tethering is not possible, “the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means)”); Riley, 2015 WL 9806795, at *9-10; Alboniga, 87 F. Supp. 3d at 1342.  It is undisputed that D.P. grabbed the dog’s harness and pulled up to direct the dog to stand up or walk.  Pl.’s SMF ¶ 15.  The additional handler also observed D.P. issue the commands to “wait,” “sit,” and “lay down” through gestures and physical manipulation of the dog.  Horozko Decl. ¶ 14; see also Denyer Decl. ¶ 11; H.P. Decl. ¶ 16.  And the United States’ expert witness, who specializes in communicative disorders and nonverbal communication, observed D.P. issue the commands to “go,” “stop,” and “stay” by altering tension on the service dog’s leash.  Pl.’s Expert Report at 8. 

        Moreover, in this case, D.P.’s dog was highly trained so that little to nothing was required to keep the service dog under control during the school day.  See Part II.C supra.  D.P.’s service dog, Hannah, received extensive training that was directly related to D.P. and her disabilities, including how to respond to meltdowns, seizures, and behaviors caused by emotional dysregulation.  Id.  The dog was trained to support D.P. in a structured school setting, including how to respond to environmental cues (e.g., daily routines, the teacher’s instructions to the class, D.P.’s behavior and actions).  Id.  As part of this training, Hannah was trained to perform tasks related to D.P.’s disabilities without anyone issuing commands (e.g., alerting to a seizure or preventing D.P. from running into danger).  Id.  According to the District’s own witnesses, if D.P. stood up, her service dog stood; if D.P. walked, the dog walked; if she stopped, the dog stopped; if she sat down, her dog did the same.  Pl.’s SMF ¶ 17.  In addition, when no task was required, D.P.’s service dog would lay on the ground near her without need for a command.  See Cook Dep. 111:2-8; Donlon Dep. 104:2-4; Schlumpf Dep. 93:15-94:7; Bevan Decl. ¶¶ 13-15; Denyer Decl. ¶¶ 4, 9-10; Horozko Decl. ¶¶ 7, 9, 16; Romano Decl. ¶¶ 9-10. 

        Indeed, District staff testified that, in the five years in question (2012-2017), they never issued commands to the service dog.  Def. 30(b)(6) Dep. (Gianforti) 217:5-6; BOCES 30(b)(6) Dep. (Martorana) 189:13-20, 191:5-10; Carroll Dep. 167:17-19; Cook Dep. 143:20-23; Schlumpf Dep. 124:18-125:12.  The additional handler at times issued commands to the dog to perform a task or to tell it where to go.  Horozko Decl. ¶¶ 11, 17.  But none of those verbal commands were required to keep the dog under control, and instead were merely instructional or optional.  Id.; Denyer Decl. ¶¶ 10-14; H.P. Decl. ¶ 18.  For example, while the additional handler may have told the dog to “come,” she could have instead guided D.P. where to go and her service dog would have followed or prompted D.P. to “get your dog”—just as District staff routinely prompted D.P. to do.  See, e.g.,Pl.’s Ex. C, Special Educ. Rel. Serv. Summ. (May 16, 2013); Carroll Dep. 89:5-9, 104:1-13; Cook Dep. 129:18-24, 132:1-11; Romano Dep. 32:6-25; Schaffer Dep. 31:3-4; Schlumpf Dep. 83:4-17, 90:24-91:20, 94:16-25; Denyer Decl. ¶ 14; Horozko Decl. ¶¶ 11-14, 17; Romano Decl. ¶ 7. 

      4. The Service Dog Was Never Out of Control
      5. In the five years in question (from Kindergarten to when D.P. left the District), Hannah never bit, barked, jumped on anyone, defecated, urinated, damaged school property, or was otherwise “out of control.”  Pl.’s SMF ¶¶ 11, 18-21.  At most, Hannah reportedly stood up and sat down a few times, took a step in the wrong direction, or turned in circles before settling down.  Carroll Dep. 168:12-169:25; Schlumpf Dep. 97:2-17.  The District’s witnesses agree that the service dog was well-behaved and laid on the floor for the majority of the school day.  See, e.g.,Cook Dep. 111:2-8; Carroll Dep. 166:16-23; Donlon Dep. 104:2-4; Schlumpf Dep. 93:17-94:7; Whitcomb Dep. 15:10-23.  Since the dog was under control at all times, the District had no basis for restricting access for D.P. and her service dog based on fears or speculation about what might happen absent the additional handler.8  Rather, a public entity may only restrict service animal access under § 35.136 if the service dog is out of control and the handler does not take effective action to control it, or the dog is not housebroken.  28 C.F.R. § 35.136(b). 

        Notably, immediately upon her transfer to a new school district D.P. acted as the handler of her service dog in school without an additional handler provided by her family.  Pl.’s Ex. B at 8, Hilton IEP (Nov. 2017); Bevan Decl. ¶¶ 11-12; H.P. Decl. ¶ 23; Romano Decl. ¶ 3; Whitcomb Decl. ¶¶ 11-12.  D.P. attended her new school district, Hilton, for a full semester with her service dog, Hannah, before the dog retired.  H.P. Decl. ¶ 24; Romano Decl. ¶ 6.  During that time, D.P. capably performed any required handling tasks, sometimes independently and sometimes when prompted to do so by her 1:1 aide.  Pl.’s Ex. B at 8; Romano Dep. 32:6-25, 38:12-25; Schaffer Dep. 31:3-4; Bevan Decl. ¶ 12; H.P. Decl. ¶ 23; Romano Decl. ¶¶ 3, 6-7. Due to her disabilities, D.P.’s learning curve is slow and protracted.  Pl.’s Expert Report at 10-13.  It would have taken her years to learn these skills.  Id.  It thus is clear that D.P. was capable of handling and controlling her service dog long before this, while she was still a student in the District.

    2. The District Was Not Responsible for “Care or Supervision” of the Dog
    3. Aside from control, the regulation required D.P., as the dog’s handler, to be “responsible for the care or supervision” of her dog in school.  28 C.F.R. § 35.136(e). 

      The most extensive case analysis of the meaning of “care or supervision” comes from the U.S. District Court for the Southern District of Florida.In Alboniga, the court concluded that “‘care and supervision’ refers to routine or daily overall maintenance of a service animal.”  Alboniga, 87 F. Supp. 3d at 1344.  In reaching this conclusion, the Alboniga court gave “significant deference” to DOJ’s interpretive guidance appended to the ADA regulation.  Id. at 1342.  The DOJ guidance explains that, if a person with a disability is confined to a bed in a hospital for a period of time, as long as such individual provides for walking and feeding the service dog, then “the individual’s obligation to be responsible for the care and supervision of the service animal would be satisfied.”9  28 C.F.R. pt. 35, app. A § 35.136 at 629 (2018).  The court found that “[t]he clear implication is that ‘care or supervision’ means routine animal care – such as feeding, watering, walking or washing the animal.”  Alboniga, 87 F. Supp. 3d at 1343.

      The DOJ guidance further explains:  “If a service animal must be separated from an individual with a disability . . . , it is the responsibility of the individual with the disability to arrange for the care and supervision of the animal during the period of separation.”  28 C.F.R. pt. 36, app. C § 36.302 at 967 (2018).  Similarly, the Alboniga court discussed cases interpreting care or supervision to mean looking after a service dog in the absence of the individual with a disability.  See Alboniga, 87 F. Supp. 3d at 1343-44; Shields v. Walt Disney Parks & Resorts US, Inc., 279 F.R.D. 529, 548 (C.D. Cal. 2011); McDonald v. Dep’t of Envtl. Quality, 351 Mont. 243, 264 (Mont. 2009)(explaining, for example, “you cannot ask the ticket-taker to watch your dog for you while you go in and watch the movie”). 

      Another federal district court agreed with the Alboniga court’s definition of “care,” but interpreted“supervision” slightly differently.  Riley, 2015 WL 9806795, at *10 (citing Alboniga).  In denying plaintiffs’ motion for a preliminary injunction, the court was persuaded by the defendants’ argument that “supervision” means “a critical watching and directing (as of activities or a course of action).”  Id.(quoting Merriam-Webster Dictionary). The Riley court concluded without analysis that “a court would likely find that the plaintiffs’ request”—that the school district issue commands to the dog, hold the dog’s leash, and assist the student with all handling tasks throughout the entire school day—“mandates the [d]istrict to ‘supervise’ [the service dog] during the school day.”  Id. at *10, 13. 

      The record clearly shows that D.P.’s service dog, Hannah, did not require any routine or daily animal maintenance in school.  Hannah was housebroken and trained to go through the school day without relieving herself.  Pl.’s SMF ¶ 11; Carroll Dep. 73:14-20; Denyer Decl. ¶ 8; Horozko Decl. ¶ 15; H.P. Decl. ¶ 3; Romano Decl. ¶ 10.  She did not require any exercise, food, grooming, or veterinary care in school.  Pl.’s SMF ¶ 12.  While D.P. needed some assistance to fill a pitcher of water, D.P. could and did pour the water into a bowl for Hannah when the dog needed it.  Carroll Dep. 107:4-10; Kurcoba Dep. 82:5-10; Romano Dep. 33:20-34:6; Schlumpf Dep. 131:1-21; Romano Decl. ¶¶ 3, 6; Horozko Decl. ¶ 15.  And it is undisputed that D.P. never left her service dog unattended in school.  Pl.’s SMF ¶¶ 13-14. 

      Moreover, unlike in Riley,District staff did not need to issue commands to the service dog or otherwise watch and direct the dog.  D.P. could perform the few necessary handling tasks for Hannah in school, sometimes independently and sometimes with prompting.  See Parts II.C & IV.A supra.  District staff did not have to issue commands to D.P.’s service dog or hold the dog’s leash.  Id.  And D.P. was with her dog throughout the school day, even when D.P. went to the restroom.  Pl.’s SMF ¶ 13; Cook Dep. 133:2-13; Schlumpf Dep. 53:16-24; Horozko Decl. ¶ 10. The service dog also remained with D.P. when D.P.’s 1:1 aide or the additional handler left the room.  Carroll Dep. 164:17-166:20; Schlumpf Dep. 53:1-24; Horozko Decl. ¶ 10.  As in Alboniga, the District was only responsible for D.P., not for care or supervision of her dog.  See Alboniga, 87 F. Supp. 3d at 1344.

    4. The Assistance D.P. Needed Did Not Justify the Additional-Handler Requirement
    5. As the Court recognized in denying the District’s first motion for summary judgment, even if D.P. needed some assistance related to her service dog, she could still be the dog’s handler—as long as that assistance did not require the District to “handle” or “control” her service dog for her.  (Order 12-13, ECF No. 28.)  Although D.P. occasionally needed assistance related to her dog, this help did not constitute handling, control, or supervision under the regulation.  Rather, the District was asked to assist D.P. “[i]n the same way a school would assist a non-disabled child to use the restroom, or assist a diabetic child with her insulin pump, or assist a physically disabled child employ her motorized wheelchair, or assist a visually disabled child deploy her white cane, or assist that same child with her seeing-eye dog.”  Alboniga, 87 F. Supp. 3d at 1344. 

      When D.P. was a student in the District, she needed the assistance of adults with certain activities, including the following tasks related to her service dog: (1) tethering and untethering D.P. from her dog as needed (and as D.P. grew older, she only needed assistance with untethering); (2) prompting D.P. to issue a few commands to the dog; and (3) assisting D.P. to fill a pitcher of water, which she then gave to her dog once a day.  Pl.’s Ex. B at 8, Hilton IEP (Nov. 2017); Romano Dep. 34:2-6; Schaffer Dep. 31:3-4, 34:2-3; Denyer Decl. ¶ 16; Horozko Decl. ¶¶ 11-15; H.P. Decl. ¶¶ 13-16, 23; Romano Decl. ¶ 3; Whitcomb Decl. ¶ 11.  Although this assistance related to her service dog, it fell within the scope of assistance regularly provided by the District to D.P. and to students without service dogs. 

      There is no question that the District assisted D.P. with many of her daily activities.  In addition to her teacher, classroom aide, and specialists, the District provided two full-time adults—her 1:1 aide and nurse—to assist D.P. at all times irrespective of her service dog.  (Am. Answer ¶ 26, ECF No. 7); Def. 30(b)(6) Dep. (Ward) 250:13-23; Carroll Dep. 163:15-22; Schlumpf Dep. 55:4-20; Horozko Decl. ¶ 8; H.P. Decl. ¶ 12.  These individuals regularly prompted D.P. to perform tasks, helped her get water and wash her hands, and assisted her with her shoes, coat, and other clothing.  See Part II supra.District staff did the same for every other student in D.P.’s class, none of whom had a service dog.  Id.  They also assisted D.P.’s classmates with their wheelchairs, special equipment, and assistive devices.  Id.  The help D.P. needed thus did not constitute handling, control, or supervision of her service dog. 

      Other courts agree.  In Alboniga, the court found that accompanying the child to take her dog for a walk to relieve itself did not require care or supervision of the service dog, because the school was “asked to accommodate [the student], not to accommodate, or care for, [the dog],” and because, for example, “a school would assist a non-disabled child to use the restroom.”  Alboniga,87 F. Supp. 3d at 1344.  The court also found this assistance was reasonable and did not constitute control or handling of the service dog.  Id. at 1341-42, 1344-45.  Similarly, the court in Cypress granted a preliminary injunction where the child needed greater assistance with her service dog.  C.C. By & Through Ciriacks v. Cypress Sch. Dist., No. SACV11352AGMLGX, 2011 WL 13130855, at *1, 6 (C.D. Cal. June 13, 2011).  The court determined that holding the dog’s leash when navigating campus, providing the dog with water, learning 5-10 commands, and tethering and untethering the dog to the student did not constitute “care or supervision” or otherwise require “handling” of the service dog that would violate § 35.136.  Id. at *4, 7.

      D.P. needed less assistance than these students and all of it pertained to assisting D.P., not her dog.  As this Court previously noted, assistance with untethering is a matter of unhooking something on D.P., not “handling the dog.”  (MSJ Hr’g Tr. 32:3-7, 36:3-4, ECF No. 25); see also (Order 12) (noting that the District conceded this point during oral argument).  Handing D.P. a pitcher of water to give to her dog is no different than handing her a glass of water to drink.  Prompting D.P. what to do and where to go throughout the school day is part of the District’s normal duties, whether or not D.P. has a service dog.  As the Court accurately summarized during oral argument:  “The only thing anyone would have to do pertains not to the dog, but to the child:  Untethering the child, reminding the child to give a command to the dog.”  (MSJ Hr’g Tr. 38:23-25.)  The District thus had no basis for requiring an additional handler for D.P.’s service dog. 

  7. CONCLUSION
  8. The ADA was enacted to remove barriers that historically kept persons with disabilities from access to, and enjoyment of, public programs and services.  To this end, the regulation at issue—28 C.F.R. § 35.136—honors the choice of an individual with a disability to be accompanied by a service animal in all aspects of community life, including at school.  See Part III supra.  Yet the requirement that the District imposed here would prevent many children who could handle a service animal within the meaning of the regulation from having a service dog in school, unless a child’s family has the financial means and resources to provide a full-time handler.10  See Def. 30(b)(6) Dep. (Ward) 121:4-20, 257:21-258:17 (explaining that the District would require an additional handler unless a child could handle the service dog “independently” and “with no assistance”); see also (MSJ Hr’g Tr. 7:4–9:16, ECF No. 25) (discussion between the Court and the District clarifying that “[i]f the mom can’t afford to pay a handler, the kid can’t come to school”); BOCES 30(b)(6) Dep. (Martorana) 232:3-14; Denyer Decl. ¶ 19.  That result cannot be reconciled with the regulation’s meaning or purpose.

    Accordingly, the United States respectfully requests that the Court grant its motion for summary judgment and issue an order granting the injunctive and declaratory relief sought in the United States’ Complaint.  The United States also requests that the Court issue a briefing schedule and set an evidentiary hearing on monetary damages for D.P. and her mother.

1 Pursuant to Federal Rule of Civil Procedure 5.2 and the United States’ motion to seal, all references to D.P. and her mother, H.P., have been redacted to provide only their initials. 

2 Angelman Syndrome is a rare neurodevelopmental genetic disorder, typically characterized by intellectual disability, developmental delay, lack or absence of speech, a generally happy demeanor, seizures, sleeping disorders, and balance or walking disorders.  Pl.’s Expert Report at 3-4.  Angelman Syndrome is a “spectrum disorder,” meaning that individuals with Angelman Syndrome represent a diverse population.  Id.  D.P. is at the high functioning end of this spectrum.  Id.

3 As used herein, District staff refers to both employees and contractors of the District, including staff employed by the Board of Cooperative Educational Services (BOCES).  See Pl.’s SMF ¶ 6.

4 Notably, all of the commands used in school were to get the dog to perform a task for D.P. or to direct the dog where to go; none of the commands were to bring the dog under control.  Denyer Decl. ¶ 10; Horozko Decl. ¶¶ 11, 17. 

5 In addition to the framework laid out in 28 C.F.R. § 35.136, the Title II regulation provides two other generally applicable defenses: (1) fundamental alteration and (2) direct threat.  See 28 C.F.R. § § 35.130(b)(7)(i), 35.139; see also 28 C.F.R. pt. 35, app. A  § 35.104 at 620-21; id. § 35.136 at 628 (2018).  The District did not argue either defense in its previous motion for summary judgment, nor would the record support either defense in this case.

6 In order to establish a Title II violation, the United States must demonstrate (1) that D.P. is a qualified individual with a disability; (2) that the District is a “public entity” subject to Title II of the ADA; and (3) that D.P. was denied the benefits of the District’s services, programs, or activities, or was otherwise discriminated against by the District by reason of her disability.  See 42 U.S.C. § 12131; Harris v. Mills, 572 F.3d 66, 73–74 (2d Cir. 2009).  Here, the parties agree that D.P. is a qualified individual with a disability and that the District is a “public entity” subject to Title II.  (Am. Answer ¶¶ 7, 9, ECF No. 7.)  We thus focus on the third element. 

7 Indeed, the Second Circuit has held that “the meaning of doubtful terms or phrases” in a regulation—like “control”—“may be determined by reference to their relationship with other associated words or phrases.”  United States v. Dauray, 215 F.3d 257, 262 (2d Cir. 2000) (citing Dole v. United Steelworkers of Am., 494 U.S. 26, 36 (1990)).  The statement that a service animal must be under the control of its handler is immediately followed by an explanation that a service animal must have a harness, leash, or other tether.  See 28 C.F.R. § 35.136(d).  The relationship between these two sentences is clear:  “a harness, leash, or other tether” are the primary means for a handler to keep a service dog under control. 

8 In its previous motion for summary judgment, the District raised purely speculative concerns about future issues with control that are not grounded in the facts of this case.  See, e.g.,(Def.’s Mem. Law Supp. Summ. J. 11-12, ECF No. 10-5) (arguing that “[a] dog might at any time become agitated for any number of reasons, including by a scream, cry, or significant commotion among students, or the expected or unexpected presence of other animals, or an illness or injury to the dog”). 

9 This guidance issued in the course of notice-and-comment rulemaking reflects the “agency’s authoritative, expertise-based, fair, [and] considered judgment” about the meaning of “care or supervision” in the Title II regulation.  See Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)).  Under these circumstances, the United States Supreme Court has held that courts should defer to DOJ’s interpretation of its own regulation.  See id.;see also id. at 2410, 2413 (using DOJ’s concurrent regulatory guidance to the ADA as an example of where Auer deference applies).  “When it applies, Auer deference gives an agency significant leeway to say what its own rules mean.”  Id. at 2418.

10 Indeed, because of the District’s improper restrictions on D.P.’s service animal access, D.P. missed over a week of school when the additional handler was sick, and missed more school when the additional handler had a death in her family.  (MSJ Hr’g Tr. 9:7-15, ECF No. 25); Pl.’s Group Ex. D; Carroll Dep. 158:7-24; Horozko Decl. ¶ 18; H.P. Decl. ¶ 11.

DATED:  November 15, 2019

JAMES P. KENNEDY, JR.
United States Attorney
Western District of New York

/s/
KATHYRN L. SMITH
Assistant United States Attorney
Western District of New York
100 State Street
Rochester, New York 14614
Telephone:  (585) 399-3961
Facsimile:  (585) 399-3920
Kathryn.L.Smith@usdoj.gov

Respectfully submitted,

ERIC S. DREIBAND
Assistant Attorney General
Civil Rights Division

CYNTHIA McKNIGHT
Acting Deputy Assistant Attorney General
Civil Rights Division

REBECCA B. BOND
Chief
ANNE RAISH
Principal Deputy Chief
KATHLEEN P. WOLFE
Special Litigation Counsel
ROBERTA KIRKENDALL
Special Legal Counsel
Disability Rights Section
Civil Rights Division

/s/
MEGAN E. SCHULLER
ELIZABETH E. McDONALD
PAULA N. RUBIN
Trial Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice 
950 Pennsylvania Avenue, N.W. – 4CON
Washington, D.C.  20530
Telephone:  (202) 307-0663
Megan.Schuller@usdoj.gov
Elizabeth.McDonald@usdoj.gov
Paula.Rubin@usdoj.gov

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