(this is a ruling-I think in California-on service dogs in public schools)

Subject: THE LAW on bringing a service dog to a public school class -- the
dog and the child win, period, the school can adjust Sullivan By and Through
Sullivan v. Vallejo City Unified School Dist., 731 F.Supp. 947, 59 Ed. Law
Rep. 73 E.D.Cal. ORDER KARLTON, Chief Judge Emeritus. Plaintiff is a 16-year
old disabled student at Hogan Senior High School in Vallejo, California. She
has cerebral palsy, learning disabilities and rightside deafness. In her
first amended complaint, filed on December 26, 1989, [FN1] plaintiff alleges
that she *949 currently uses a wheelchair for mobility. In February 1988,
she participated in an intensive two-week training
Program organized by Canine Companions for Independence ("Canine Companions
), an organization that trains service dogs for use by people with
disabilities. First Amended Complaint at paras. 16 and 17; Declaration of
Bonita Bergin in Support of Motion for Preliminary Injunction at 1. At the
conclusion of the training, plaintiff received a service dog for a
probationary period which she subsequently completed. Id. FN1. Plaintiff
originally filed a verified complaint with this court on October 31, 1989.
In lieu of filing an answer, defendants noticed a motion to dismiss the
complaint pursuant to Federal Rules of Civil Procedure 12(B)(1) and 12(B)(6)
on November 20, 1989. Defendants' argument that plaintiff acted improperly
in filing an amended complaint is erroneous. Federal Rule of Civil Procedure
15(a) allows a plaintiff to amend her complaint once as of right any time
prior to the filing of a responsive pleading. The Ninth Circuit has
repeatedly held that a
Motion to dismiss the complaint is not a responsive pleading for purposes of
this rule. Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.1984), and
cases cited therein. Because plaintiff's amended pleading does not attempt
to cure the asserted defects complained of by defendants, the court will
treat the motion to dismiss as if it was directed to the first amended
complaint. Plaintiff complains that defendants have refused to allow her to
bring her service dog to school in violation of rights secured by section
504 of the Rehabilitation Act of 1974, 29 U.S.C. § 794, California Civil
Code §§ 54.1 and 54.2, and California Civil Code § 51 (Unruh Civil Rights
Act). Accordingly, she seeks injunctive and declaratory relief against the
Vallejo City Unified School District, several school administrators and
various members of the Vallejo School Board. She also seeks damages under
claims for intentional and negligent infliction of emotional distress. The
matter
Is currently before the court on defendants' motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(B)(1) and 12(B)(6), and plaintiff's
motion for a preliminary injunction. I DEFENDANTS' MOTION TO DISMISS
Defendants move to dismiss plaintiff's Rehabilitation Act claim, arguing
that plaintiff has failed to exhaust available administrative remedies and
thus this court is without subject matter jurisdiction. Defendants seek
dismissal of plaintiff's pendent claims for failure to state a claim. For
the reasons I explain below, the motion is denied. A. The Rehabilitation Act
Claim 1. Standards It is well established that the party seeking to invoke
the jurisdiction of the federal court has the burden of establishing that
jurisdiction exists. KVOS, Inc. V. Associated Press, 299 U.S. 269, 278, 57 S
Ct. 197, 201, 81 L.Ed. 183 (1936); Scott v. Breeland, 792 F.2d 925, 927 (9th
Cir.1986). On a motion to dismiss pursuant to Federal Rule of Civil
Procedure
12(B)(1), the standards that must be applied vary according to the nature of
the jurisdictional challenge. I have previously examined the mode of
ascertaining and applying those standards, see Cervantez v. Sullivan, 719 F
Supp. 899, 903 (E.D.Cal.1989), and it is unnecessary to repeat that
discussion at length here. [1] A complaint will be dismissed for lack of
subject matter jurisdiction (1) if the cause does not "arise under" any
federal law or the United States Constitution, (2) if there is no case or
controversy within the meaning of the constitutional term, or (3) if the
cause is not one described by any jurisdictional statute. Baker v. Carr, 369
U.S. 186, 198, 82 S.Ct. 691, 699, 7 L.Ed.2d 663 (1962). 2. Exhaustion of
Claims [2] Defendants contend that this court lacks jurisdiction to
entertain plaintiff's section 504 claim because she has failed to exhaust
the administrative remedies provided by the Education of the Handicapped Act
20 U.S.C. § 1400 et
Seq. ("EHA") as required by the Handicapped Children's Protection Act of
1986, 20 U.S.C. § 1415(f) ("HCPA"). Resolution of the motion turns upon a
close examination of the relationship of the three statutes. I undertake
that task below. Section 504 to the Rehabilitation Act of 1973 generally
prohibits discrimination against disabled individuals by federally funded
programs. [FN2] The implementing regulations *950 promulgated by the
Department of Education make clear that educational institutions, including
preschool, elementary and secondary schools that receive federal funds come
within the ambit of the statute. See 34 C.F.R. §§ 104.31, et seq.; see also
Timms v. Metro. School Dist. of Wabash Cty. Ind., 722 F.2d 1310, 1317 (7th
Cir.1983). The statute has been interpreted to require federal grantees to
modify or excuse non-essential requirements which impede a disabled person
from participating in the grantee's federally funded program. It has been
held that a
grantee's refusal to make "reasonable accommodations" for the disabled
person can only be explained as "unreasonable or discriminatory."
Southeastern Community College v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361,
2370, 60 L.Ed.2d 980 (1979). FN2. The Act provides in relevant part: "No
otherwise qualified individual with handicaps as defined in Section 706(8)
of this Title shall, solely by reason of his or her handicap, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance." 29 U.S.C. § 794. The Education of the Handicapped Act, 20 U.S.C
§ 1400, on the other hand, is a funding statute "passed in response to
Congress' perception that a majority of handicapped children in the United
States 'were either totally excluded from schools or [were] sitting idly in
regular classrooms awaiting the time when they were old enough to drop out.'
" Bd. of Ed. of
Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S.
176, 179, 102 S.Ct. 3034, 3037, 73 L.Ed.2d 690 (1982), citing H.R.Rep. No.
94-332 at 2 (1975). To achieve the goal of ensuring that all handicapped
children obtain a "free appropriate public education," the statute imposes
on federally subsidized schools an affirmative obligation to create an
individualized education program" ("IEP") for each child who, as a result of
a physical, mental or emotional disability, "require[s] special education
and related services." 20 U.S.C. § 1401(a)(1) and (5). The Supreme Court has
held that the substantive requirements of the statute are satisfied where
the handicapped child receives "personalized instruction and sufficient
support services to permit the child to benefit educationally from that
instruction." Hendrick, 458 U.S. at 203, 102 S.Ct. at 3049. The High Court
has determined that the guarantee of equal protection requires no more than
the
provision of a "basic floor of educational opportunity." Id. at 200, 102 S
Ct. at 3047. The statute, however, does impose extensive procedural
requirements upon participating states. Thus it requires that the parents or
guardians of handicapped children be provided notice and an opportunity to
be heard in an administrative proceeding regarding any proposed changes in
the child's educational program or placement. See 20 U.S.C. §§ 1415(b)(1)(D)
1415(b)(1)(E), 1415(b)(2) and 1415(c). [FN3] FN3. These provisions confer
on handicapped children and their parents a broad right to have complaints
resolved at a full adversary hearing before an impartial hearing officer
under the auspices of the state or local educational agency in connection
with "any matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public
education to such child." 20 U.S.C. § 1415(b)(1)(E), (b)(2) and (c). Where
the
complaint is initially heard at the local or regional level, an appeal must
be available before the state educational agency. 20 U.S.C. § 1415(c).
Thereafter, a party "aggrieved by the findings and decisions" achieved
through the administrative process may file a civil action "in any court
with jurisdiction." 20 U.S.C. § 1415(e)(2). In the context of primary and
secondary education, EHA and section 504 present "a complimentary set of
standards ... to determine the appropriate educational setting for a
handicapped child." Martinez By and Through Martinez v. School Bd. of
Hillsborough Cty., Fla., 861 F.2d 1502, 1505 (11th Cir.1988). While EHA and
section 504 create parallel remedies where a school district fails in its
obligation to provide a handicapped child with a basic floor of educational
opportunity, see Timms, 722 F.2d at 1318, the substantive rights created by
the two statutes are distinct. Moreover, in certain circumstances, section
504 creates greater
substantive rights than those available under EHA. See Smith v. Robinson,
468 U.S. 992, 1021, 104 S.Ct. 3457, 3473, 82 L.Ed.2d 746 (1984). For example
section 504 provides a remedy, unavailable under EHA, where a disabled
student has been provided basic educational opportunities *951 but has been
treated arbitrarily or in a different manner than similarly situated
able-bodied students by virtue of his or her handicap. Finally, a third
statute must be considered. In 1986, Congress passed the Handicapped
Children's Protection Act ("HCPA") as an amendment to EHA. 20 U.S.C. §
1415(f). HCPA requires exhaustion of the EHA administrative remedies prior
to filing suit under Section 504 to the extent that the relief sought in the
section 504 action would be equally available under EHA. The statute makes
clear, however, that EHA does not "restrict or limit the rights, procedures
and remedies available under ... Title V of the Rehabilitation Act of 1973."
20 U.S.C. §
1415(f). Plaintiff seeks a court order requiring the school district to
allow plaintiff to be accompanied by her service dog at school. Defendants
argue that to achieve this goal, plaintiff can convene an IEP hearing for
the purpose of determining whether she requires the assistance of the
service dog to obtain the educational benefits guaranteed to her by EHA.
Defendants conclude that since the possibility exists that plaintiff could
achieve her objective through the IEP process, through a finding that the
service dog would be of some educational benefit to plaintiff, this court's
jurisdiction over parallel causes of action is conditioned on her exhaustion
of these procedures pursuant to the HCPA. The argument will not lie.
Defendants' argument is premised on the erroneous assumption that plaintiff
claims she is being deprived of a "free appropriate public education" within
the meaning of EHA as a result of defendants' decision to exclude her
service dog from
the school premises. Plaintiff, however, does not dispute that the IEP
created for her pursuant to EHA is adequate from an educational standpoint,
nor has she alleged that the service dog is educationally necessary.
Properly construed, plaintiff's claim is that whether or not the service dog
is educationally necessary, defendants have discriminated against her on the
basis of her handicap by arbitrarily refusing her access if she is
accompanied by her service dog. The consequences of plaintiff's pleading
relative to defendants' motion seems quite straightforward. Under plaintiff
s complaint, she may prevail by demonstrating that failing to make
reasonable accommodations for her use of a service dog amounts to arbitrary
discrimination. [FN4] Davis, 442 U.S. at 413, 99 S.Ct. at 2370. Put another
way, once plaintiff has made a threshold showing that her decision to use
the service dog is reasonably related to her disability, the sole issue to
be decided under
section 504 is whether defendants are capable of accommodating plaintiff's
choice to use a service dog. The issue of whether the service dog enhances
plaintiff's educational opportunities, which is central to the EHA inquiry,
is completely irrelevant under section 504. It thus cannot be said that the
relief sought by plaintiff--an order restraining defendants from excluding
plaintiff's service dog whether or not it is educationally enhancing--is
available under EHA. Accordingly, plaintiff need not exhaust the EHA
administrative remedies, and defendants' motion to dismiss the federal claim
for lack of subject matter jurisdiction must be denied. FN4. Throughout her
briefing, plaintiff suggests that section 504's non-discrimination mandate
guarantees her "the right to define her own completeness, even if that
completeness includes accommodating an animal." Plaintiff's Reply Memorandum
at 13 (filed December 4, 1989). This is not the law. Although as I explain
infra,
section 504 prevents defendants from questioning the validity of plaintiff's
choice to use a service dog to increase her physical independence,
defendants remain free to exclude the dog if they can show that no
reasonable accommodations are available. B. Pendent State Law Claims
Defendants also seek dismissal of plaintiff's claims brought pursuant to
California Civil Code § 51 (Unruh Civil Rights Act), and California Civil
Code §§ 54.1 and 54.2. 1. Standards [3] I have repeatedly discussed the
standards applicable to a motion to dismiss, see, e.g., Johnson v. City of
Chico, 725 *952 F.Supp. 1097, 1098 (E.D.Cal.1989), and no purpose would be
served by repeating that discussion here. It suffices to observe that on a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the
complaint is construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S.
232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The court may not
dismiss the complaint
for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of the claim which would
entitle him or her to relief. Hishon v. King & Spaulding, 467 U.S. 69, 104 S
Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 101- 102, 2 L.Ed.2d 80 (1957)). 2. The Unruh Civil Rights Act
Claim [4] The Unruh Civil Rights Act provides, in relevant part: All persons
within the jurisdiction of this state are free and equal and no matter what
their sex, race, color, religion, ancestry, national origin or blindness or
other physical disability are entitled to full and equal accommodations,
advantages, facilities, privileges, or services in business establishments
of every kind whatsoever. Cal.Civ.Code § 51. Defendants contend that
plaintiff's Unruh Act claim fails because a public high school is not a
business establishment" within the meaning of the statute. While this
argument
has the appeal of "plain meaning," it cannot prevail. The California Supreme
Court has taught that the "Legislature's desire to banish [discrimination]
from California's community life has led [that] court to interpret the Act's
coverage 'in the broadest sense reasonably possible.' " Isbister v. Boys
Club of Santa Cruz, Inc., 40 Cal.3d 72, 76, 219 Cal.Rptr. 150, 707 P.2d 212
(1985), citing Burks v. Poppy Construction Co., 57 Cal.2d 463, 468, 20 Cal
Rptr. 609, 370 P.2d 313 (1962). Under a parity of the reasoning adopted in
Isbister, it appears relatively certain that it is "reasonably possible"
that "business establishments" as used in the statute includes public
schools. The Unruh Act, adopted in 1959, "emanates from and is modeled upon
California's earlier statute forbidding arbitrary discrimination in public
accommodations." Isbister, 40 Cal.3d at 78, 219 Cal.Rptr. 150, 707 P.2d 212.
Its predecessor statute, first adopted in 1897, derived from the common law
doctrine prohibiting arbitrary discrimination by public enterprises. Id. The
Unruh Act "expanded the reach of the prior public accommodations statute
from common carriers and places of public accommodation and recreation such
as railroads, hotels, restaurants and theaters" to include "all business
establishments of every kind whatsoever." Id., citing Marina Point, Ltd. v.
Wolfson, 30 Cal.3d 721, 731, 730, 180 Cal.Rptr. 496, 640 P.2d 115 (1982).
This language was included in the Unruh Act to vindicate the Legislature's
concern that the courts were construing the 1897 public accommodations
statute too strictly." Id. The Court has explained that: The original
version of the bill which became the Unruh Act extended its
antidiscriminatory provisions to "all public or private groups,
organizations, associations, business establishments, schools, and public
facilities...." Later versions dropped all the specific enumerations except
business establishments" but added
to the later phrase the modifying words "of every kind whatsoever." The
broadened scope of business establishments in the final version of the bill,
in our view, is indicative of an intent by the Legislature to include
therein all private and public groups or organizations [specified in the
original bill] that may reasonably be found to constitute "business
establishments of every type [sic] whatsoever." Isbister, quoting O'Connor v
Village Green Owners Ass'n, 33 Cal.3d 790, 795-96, 191 Cal.Rptr. 320, 662 P
2d 427 (1983) (citations omitted; emphasis added in Isbister ). Under this
interpretation, the California Supreme Court has found that a non- profit
homeowners' association, O'Connor, and a non-profit boys club, Isbister,
qualified as "business establishments" under Unruh. *953 In like fashion,
since public schools were among those organizations listed in the original
version of the Unruh Act, it must follow that for purposes of the Act they
are business
establishments as well. [FN5] In view of the California Supreme Court's
broad reading of the statutory language as well as its understanding of the
intention of the Legislature as read against the historical background, the
motion to dismiss plaintiff's Unruh Act claim must be denied. FN5. I note in
passing that one of the pre-Unruh decisions which the Legislature acted to
overrule, when it adopted Unruh in 1959, had held that private schools were
not subject to the existing public accommodations statute. Reed v. Hollywood
Professional School, 169 Cal.App.2d Supp. 887, 338 P.2d 633 (1959). 3. Civil
Code Section 54.2 [5] In addition to the general prohibition on arbitrary
discrimination created by the Unruh Act, the California Legislature has
specifically determined that physically disabled individuals shall have the
right to be accompanied by a service dog in places of accommodation. See Cal
Civ.Code §§ 54.1(a), 54.2(a). The right of access created by these
statutes extends to a broad range of facilities including Common carriers,
airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats or
any other public conveyances or modes of transportation, telephone
facilities, hotels, lodging places, places of public accommodation,
amusement or resort, and other places to which the general public is invited
.. Cal.Civ.Code § 54.1(a). Defendants contend that plaintiff cannot state a
claim under this statute. They argue that since public high schools may
restrict access to their premises, facilities of this type cannot be
characterized as "places to which the general public is invited." Defendants
assertion that Cal.Civ.Code § 54.1 does not apply to facilities that
restrict access to certain sectors of the population for administrative or
other non-discriminatory reasons cannot be reconciled with either the
statute's inclusive language or its remedial purpose. While the terms
public accommodations" and
"places to which the general public is invited" are not defined in the
statute itself, in view of the comprehensive statutory scheme designed to
ensure that disabled persons in California have "the same right as the
able-bodied to the full and free use ... of public places," Cal.Civ.Code §
54, these terms must be construed broadly. As the California Attorney
General has concluded in an analogous context, "for purposes of Sections 54
1 and 54.2, it is irrelevant that some groups of the general public are
excluded from the facility." 70 Ops.Cal.Atty.Gen. 104, 107 (1987) (private
medical facilities deemed public accommodations for purposes of Civil Code
§§ 54.1 and 54.2). Rather, the statute mandates that to the extent a
facility is open to members of the general public, even where some sectors
of the population have been excluded, access must be equally available to
disabled and able-bodied persons alike. See id. To construe the statute in
any other manner would
undermine its evident remedial purpose. There are few, if any, public
facilities which are open to every member of the general public without
limitation. Under defendants' theory, any public facility that provides
services on an unlimited basis to a particular segment of the population
would be free to discriminate against disabled individuals who meet the
other admission criteria, but who require the services of a guide, signal,
or service dog. [FN6] Under this interpretation, the catchall category
included at the end of the specifically enumerated list would severely
restrict, rather than broaden, the type and number of facilities subject to
the statutory non-discrimination mandate. It seems apparent *954 that such a
construction conflicts with the statute's underlying objective of creating
conditions which would increase the participation of disabled persons in
public life. FN6. For example, certain businesses, such as drinking
establishments and movie
theaters, routinely exclude minors but remain open to all other members of
the general public. Publicly financed housing excludes persons on the basis
of income. Private hospitals limit their services to persons with the
ability to pay. Public libraries exclude persons who make noise. Under
defendants' theory, each of these business establishments would be exempt
from the requirements of California Civil Code section 54.2 on the ground
that certain sectors of the general population are excluded. Defendants make
a related argument that the Legislature's intent to exclude public schools
from the scope of Civil Code section 54.1 is evidenced by California
Education Code section 39839 which excludes school buses from the scope of
California Civil Code section 54.1. It appears to the court, however, that
the Education Code provision, to the extent it is relevant at all, suggests
a conclusion quite the opposite of that argued for by defendants. The
existence of a
specific exemption to the application of California Civil Code section 54.1
in the education area suggests that the Legislature was fully aware of the
statute's effect and limited its scope where it thought appropriate.
Contrary to defendants' assertion, public schools seem to fall comfortably
within the ambit of Civil Code § 54.1. Public schools serve a significant
segment of the population; indeed generally speaking, public school
attendance is mandatory for California's children between the ages of six
and sixteen. Cal.Educ.Code §§ 48200, et seq. Because the mission of the
state's public schools is to educate all of California's children, it is
difficult to even conceive of a rationale under which the Legislature would
except schools from the important remedial function of the statute;
certainly defendants tender none. Under these circumstances, defendants'
motion to dismiss plaintiff's claim predicated on California Civil Code §§
54.1 and 54.2 must be denied.
[FN7] FN7. It appears to the court, after reviewing defendants' response to
the State of California's amicus brief, that defendants have abandoned their
argument that public accessibility to disabled persons is governed by
California Government Code § 4450, the architectural barriers statute,
rather than California Civil Code §§ 51 and 54.1. Although it is apparent
that this argument could not prevail for the reasons articulated in the
initial brief submitted by Amicus, I will refrain from addressing the
argument in any detail. C. Conclusion For the reasons articulated above,
defendants' motion to dismiss plaintiff's discrimination claims must be
denied in its entirety. I now turn to an analysis of whether plaintiff is
entitled to preliminary relief under any of these theories. II PLAINTIFF'S
PRELIMINARY INJUNCTION MOTION A. Preliminary Injunction Standards Two
threshold issues relative to the appropriate standards governing the instant
motion are presented
by this case. First, I must determine the standards applicable to plaintiff
s request for a mandatory injunction pursuant to her federal Rehabilitation
Act claim. Second, I must decide whether federal or state law standards
govern a motion for preliminary relief relative to pendent state law claims
where, as here, the court's jurisdiction is predicated on the presence of a
federal question. 1. Federal Mandatory Injunction Standards [6] I begin by
noting that the purpose of an award of preliminary relief as authorized by
Federal Rule of Civil Procedure 65 is to preserve the relative positions of
the parties--the status quo anti litem, or the last uncontested
status--until a full trial on the merits can be conducted. University of
Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175
(1981). The Ninth Circuit has explained that although "the basis for
injunctive relief in the federal courts has always been irreparable injury
and the inadequacy
of legal remedies," Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S
Ct. 1798, 1803, 72 L.Ed.2d 91 (1982), "where a party seeks mandatory
preliminary relief that goes well beyond maintaining the status quo pendente
lite, courts should be extremely cautious about issuing a preliminary
injunction." Martin v. International Olympic Committee, 740 F.2d 670, 675
(9th Cir.1984). Thus, under the law of this circuit, as a *955 general rule
mandatory preliminary relief is not to be granted unless both the facts and
the law clearly favor the moving party and extreme or very serious damage
will result. Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir.1979).
[I]n doubtful cases, or where the injury complained of is capable of
compensation in damages" a mandatory injunction will not issue. Id.
Plaintiff concedes that the preliminary relief sought in this case is of a
mandatory character; that concession is wholly appropriate in view of the
fact that she has not
previously been accompanied by her service dog at school. She argues,
however, that the less stringent traditional standards, see, e.g.,
Wilderness Society v. Tyrrel, 701 F.Supp. 1473, 1476, 1477 (E.D.Cal.1988),
govern where the injunctive relief sought would require the defendants to
comply with federal civil rights laws. Plaintiff concludes that, in these
circumstances, the injunction may be characterized as mandatory in form but
prohibitory in effect. She relies on People v. Mobile Magic Sales, Inc., 96
Cal.App.3d 1, 157 Cal.Rptr. 749 (1979), as the sole support of this
proposition. Although Mobile Magic Sales, Inc. has analytical appeal, it was
decided under California law, and as far as this court can determine, the
Ninth Circuit Court of Appeals has not adopted this form of analysis.
Plaintiff also argues that the Ninth Circuit routinely employs the
traditional preliminary injunction standards in section 504 cases without
considering whether the relief
sought is mandatory or prohibitory in character. I cannot agree. In all of
the cases relied on by plaintiff, the preliminary injunctive relief sought
was designed to return the parties to the last uncontested status and was
therefore truly prohibitory in character. [FN8] Here, in contrast, plaintiff
has never been accompanied by her service dog at school nor have defendants
ever indicated that they would grant such a request. An injunction requiring
the defendant school district to make accommodations for the dog would thus
alter the status quo ante litem. Absent indicia from the Ninth Circuit that
the ordinary standards governing an award of mandatory preliminary relief
are to be relaxed where civil rights violations are alleged, I must conclude
that the conventional standards apply. FN8. In Chalk v. U.S. Dist. Court,
Cent. Dist. of Cal., 840 F.2d 701 (9th Cir.1988), plaintiff sought
reinstatement to her teaching position after being terminated on the basis
that
she had AIDS. Similarly, in Thomas v. Atascadero Unified School Dist., 662 F
Supp. 376 (C.D.Cal.1986), plaintiff was a child with AIDS who sought an
injunction compelling his readmission to school after having been excluded
on the basis of his disease. Finally, in Kling v. County of Los Angeles, 633
F.2d 876 (9th Cir.1980), rev'd 474 U.S. 936, 106 S.Ct. 300, 88 L.Ed.2d 277
(1985), plaintiff, who suffered from Crohn's disease, sought an injunction
compelling the defendant nursing school to reinstate its prior decision
admitting her to a nursing program. 2. Pendent State Claims [7] The second
threshold issue I must resolve is whether federal or state law standards
guide this court's determination of plaintiff's entitlement to a preliminary
injunction on her pendent state claims. Both plaintiff and defendants agree
that federal law supplies the controlling standards. Recognizing that state
law standards are likely more favorable to plaintiff's position,
however, Amicus, the State of California, reaches the opposite conclusion.
It argues that where injunctive relief is authorized under state law to
enforce a state law right, the Erie doctrine compels application of state
law standards. Although this argument is not without strength, I conclude
that it is erroneous. It is clear that the principles enunciated by the
Supreme Court in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed
1188 (1938), regarding the application of federal or state law in the
diversity context apply with equal force where the federal court exercises
its pendent jurisdiction over state law claims. United Mine Workers of
America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218
(1966). Under the Erie doctrine, federal courts are bound to apply state
substantive law and federal rules of procedure to state law claims. Hanna v.
Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 1140, 14 L.Ed.2d 8 (1965). The
High Court has
cautioned *956 that "choices between state and federal law are to be made
not by application of any automatic litmus test, but rather by reference to
the policies underlying the Erie rule," id. at 467, 85 S.Ct. at 1141, and
most particularly the policy which insures "substantial uniformity of
predictable outcome between cases tried in federal court and cases tried in
the courts of the state in which the federal court sits." Guaranty Trust Co.
of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079
(1945). Amicus asserts that injunctive relief is a primary means of securing
the rights guaranteed by both the Unruh Civil Rights Act and California
Civil Code §§ 54.1 and 54.2. From this, Amicus concludes that application of
state law standards for granting preliminary injunctive relief is crucial to
ensuring that these rights are as fully protected in federal court as they
would be in state court. This argument fails to recognize the important
difference in the character of permanent and preliminary injunctive relief.
A permanent injunction is a creature of equity designed to enforce
substantive law rights. 7 Moore's Federal Practice, Pt. 2, para. 65.18[1].
In this sense, the availability of injunctive relief is an integral
component of the substantive law right. Where federal courts are called upon
to adjudicate a claim predicated on state law, under either its diversity or
pendent claim jurisdiction, there appears to be no question that the
ultimate issue of whether injunctive relief may issue must be decided under
applicable state law. Id. Were the rule otherwise, a substantial risk that
different outcomes could be achieved in state and federal court would be
presented in direct violation of the Erie doctrine. The purpose of a
preliminary injunction, by contrast, is both to preserve the relative
positions of the parties and minimize the risk of irreparable harm until a
trial on the merits can be
held." Capital Tool and Mfg. Co., Inc. v. Maschinenfabrik Herkules, 837 F.2d
171, 172 (4th Cir.1988). Although the court makes an initial determination
regarding the merits of the underlying claim, "a party is not required to
prove his case in full at a preliminary injunction hearing ... and the
findings of fact and conclusions of law made by a court granting a
preliminary injunction are not binding at trial on the merits." Wilderness
Soc'y, 701 F.Supp. at 1476, quoting University of Texas v. Camenisch, 451 U
S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). [FN9] In sum, the
standards supplied by Federal Rule of Civil Procedure 65 to aid the court in
exercising its discretion cannot be characterized as either a component of
the substantive right sought to be enforced or outcome determinative for
purposes of the Erie doctrine. As the Ninth Circuit has recently explained,
Rule 65 merely sets forth the procedural terms for the issuance of
injunctions and
restraining orders and does not itself authorize injunctive relief." Sims
Snowboards, Inc. v. Kelly, 863 F.2d 643, 646 (9th Cir.1988). FN9. It is true
that where preliminary mandatory relief is sought, a higher standard must be
applied and the moving party bears a greater burden of persuasion.
Nonetheless, the granting of preliminary mandatory relief like the granting
of preliminary prohibitory relief is not a finding on the merits, and the
court is free to reweigh the evidence and the law upon trial on the merits.
The above analysis is not meant to suggest that state law may not inform the
court's exercise of its equitable powers in determining whether preliminary
injunctive relief is available in a particular case. In order to make the
determination that the moving party is likely to succeed on the merits of
its substantive claim, a federal court must inquire into whether injunctive
relief would be available as a matter of state law. Where a party seeks
injunctive relief under a state law based claim which would not be available
in the state forum, a federal district court may not exercise the discretion
it has under the federal standard to grant an injunction. The Ninth Circuit
implicitly adopted this analysis in the recent Sims Snowboards decision.
There, the circuit vacated a district court order granting a preliminary
injunction on a state law based breach of contract claim where injunctive
relief was unavailable under California *957 law. In reviewing the trial
court order, the circuit referred explicitly to the procedural requirements
of Federal Rule of Civil Procedure 65, but explained, "[t]he general
equitable powers of federal courts should not enable a party suing in
diversity to obtain an injunction if state law clearly rejects the
availability of that remedy." Id. at 647. Similarly, in Kaiser Trading Co. v
Associated Metals & Minerals Corp., the court explained that "the best
approach would be to
look to state law to determine if a preliminary injunction is permissible ..
[and then to] look to federal law to determine whether the court should
exercise its discretion." 321 F.Supp. 923, 931 n. 14 (N.D.Cal.1970), appeal
dismissed, 443 F.2d 1364 (9th Cir.1971). Here, plaintiff seeks a preliminary
injunction on her state statutory claims for discrimination. It may be that
the state law standards governing mandatory preliminary relief are more
relaxed than the federal standards described above, see People v. Mobile
Magic Sales, Inc., 96 Cal.App.3d 1, 157 Cal.Rptr. 749 (1979), but that is
not the issue. While a favorable ruling on plaintiff's motion represents an
indication as to how the court will rule on the substantive issues, it in no
way represents a final ruling on the merits. Given that conclusion, it
appears to this court that federal law provides the standards governing
plaintiff's motion for preliminary injunctive relief with respect to both
her
federal and state law claims. I now proceed to the substance of the motion.
B. Probability of Success on the Merits [8] Plaintiff asserts an entitlement
to a mandatory preliminary injunction on her federal handicap discrimination
claim as well as her claims predicated on the Unruh Civil Rights Act, Cal
Civ.Code § 51 and California Civil Code §§ 54.1 and 54.2. Because I conclude
that plaintiff has demonstrated a clear probability of success on the merits
under section 504 of the Rehabilitation Act and California Civil Code
sections 54.1 and 54.2, I need not reach her Unruh Civil Rights Act claim. 1
The Section 504 Claim To make out a prima facie case of discrimination
under section 504, plaintiff bears the burden of demonstrating that she is
(1) "handicapped," (2) "otherwise qualified" to participate in the federally
financed program and has been excluded from participation by reason of his
or her handicap, and that (3) the relevant program receives federal
financial assistance. Doherty v. Southern College of Optometry, 659 F.Supp.
662, 671 (W.D.Tenn.), aff'd, 862 F.2d 570 (6th Cir.1988). Once a prima facie
case has been established, the burden shifts to the defendant to produce
evidence to rebut the inference of discrimination. Sisson v. Helms, 751 F.2d
991, 993 (9th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d
113 (1985). As in all civil litigation, the plaintiff bears the burden of
persuading the trier of fact by a preponderance of the evidence that the
defendant engaged in impermissible handicap discrimination. Id. at 993.
Where the issue of reasonable accommodation is at issue, as in this case,
the defendant bears the burden of demonstrating that accommodations cannot
reasonably be made that would enable the handicapped person to participate.
Id. Thus, if the defendant proffers credible evidence that reasonable
accommodation is not "possible or practicable," plaintiff bears the ultimate
burden of
coming forward with evidence that an accommodation may in fact be made. Id.
a. Prima Facie Case In the instant case, there is no dispute that plaintiff
meets the first criteria for establishing a prima facie case of handicap
discrimination. A person is "handicapped" within the meaning of the statute
who has a physical or mental impediment which substantially limits one or
more of such person's major life activities. 29 U.S.C. § 706(8)(B).
Plaintiff here has cerebral palsy, a physically disabling condition, which
severely limits mobility. Declaration of Vincent Pasquarillo in Support of
Motion for Preliminary Injunction at 2. She uses the auxiliary aids of a
wheelchair and a service dog to overcome her physical limitations. Id. at 2;
Declaration of Christine *958 Sullivan in Support of Motion for Preliminary
Injunction at 2-3. Moreover, it is not contested that the defendant high
school district is a recipient of federal funds, and thus the third criteria
is
satisfied. Defendants maintain that plaintiff cannot satisfy the second
element necessary to establish a prima facie case, arguing that they have
excluded only plaintiff's service dog from the school premises and not
plaintiff herself. [FN10] Defendants' attempt to distinguish between
plaintiff and her service dog for purposes of admission to the school
premises cannot be reconciled with either the letter or the spirit of the
Rehabilitation Act. The statute defines "handicapped individual" broadly to
include both persons who are impaired and who are regarded as disabled. 29 U
S.C. § 706(8). Its dual purpose is to increase the participation of
handicapped persons in society, see Alexander v. Choate, 469 U.S. 287, 300,
105 S.Ct. 712, 719, 83 L.Ed.2d 661 (1985), and "to ensure that handicapped
persons are not denied ... benefits because of the prejudiced attitudes and
ignorance of others." School Bd. of Nassau County, Fla. v. Arline, 480 U.S.
273, 284, 107 S.Ct.
1123, 1129, 94 L.Ed.2d 307 (1987). Because a central purpose of the Act is
to prevent discrimination based on public perception of a person's handicap,
deference must be shown to the manner in which a handicapped person chooses
to overcome the limitations created by her disabling condition. Put simply,
the statute requires accommodation to the plaintiff's handicap; it does not
require that she accommodate to the views of the public about her condition.
In sum, as long as the choices the handicapped person makes concerning how
to effectively address her circumstances are reasonable, the Rehabilitation
Act both protects those choices from scrutiny, and prohibits discrimination
against the disabled person on the basis of those choices. FN10. There is no
dispute that plaintiff is qualified, within the meaning of the statute, to
participate in the defendants' public school program. See Southeastern
Community College v. Davis, 442 U.S. at 406, 99 S.Ct. at 2367
("otherwise qualified individual" is one who is able to meet all of the
program's requirements in spite of his or her handicap). Indeed, under EHA,
defendants are required to create an individualized educational program that
enables plaintiff to participate. Moreover, she has successfully attended
Hogan High School for two years. In the matter at bar, plaintiff has chosen
to use a service dog to increase her physical independence and to decrease
her need to rely on others to perform tasks that are beyond her own physical
capacity. The choice to employ a service dog for these purposes is akin to
choosing to use a wheelchair to increase her mobility rather than a pair of
crutches. By excluding her service dog, defendants have asked plaintiff to
assume a different persona while she attends school, i.e., the persona of a
disabled person without a service dog. In this basic sense, the effect of
defendants' decision to deny entrance to the service dog is to exclude
the person who exists everywhere but in school, i.e., a disabled person with
a service dog, from participation in the educational program as well.
Because the statute does not permit such an exclusion, I conclude that
plaintiff has made out a prima facie case of handicap discrimination under
section 504. b. Impermissible Discrimination Plaintiff must also demonstrate
a clear probability of success on the merits of her claim that, in violation
of section 504, defendants have failed to make reasonable accommodations to
her condition as a disabled person using a service dog. For the reasons I
explain below, plaintiff has succeeded in this task. The Supreme Court has
held that section 504 imposes on federally funded programs a duty to
accommodate handicapped persons, to the extent possible, to ensure that
non-essential requirements and practices do not "arbitrarily deprive
genuinely qualified persons of the opportunity to participate in a covered
program." Davis, 442
U.S. at 412, 99 S.Ct. at 2370. Put another way, a program may not be defined
in a way that effectively denies meaningful access to an otherwise qualified
handicapped person. Choate, 469 U.S. at 301, 105 S.Ct. at 720. To ensure
this principle is respected, where it appears that a handicapped person
satisfies *959 a federally funded program's basic requirements, section 504
requires the court to determine whether any "reasonable accommodations" can
be made by the grantee to facilitate the handicapped person's participation.
Arline, 480 U.S. at 288 n. 17, 107 S.Ct. at 1131 n. 17. As noted above, a
defendant's refusal to modify an existing program to eliminate non-essential
requirements that would prevent a handicapped person from participation must
be condemned as "unreasonable and discriminatory." Davis, 442 U.S. at 413,
99 S.Ct. at 2370. On the other hand, an accommodation is not reasonable "if
it either imposes an undue financial or administrative burden on the
grantee, or requires a fundamental alteration in the nature of the program."
Id., at 412, 99 S.Ct. at 2370. In California, the scope of the duty of
reasonable accommodation is, at the minimum, defined by the provisions of
state law which require the defendant school district to grant access to
plaintiff's service dog. As I noted above, California Civil Code § 54.1
mandates that "physically disabled persons shall be entitled to full and
equal access, as other members of the general public ... to places to which
the general public is invited." The equal access mandate of section 54.1 is
implemented, in part, by California Civil Code § 54.2, which requires that
[e]very ... physically handicapped person shall have the right to be
accompanied by a guide dog, signal dog, or service dog, especially trained
for that purpose, in any of the places specified in Section 54.1" (emphasis
supplied). The only limitations which may be imposed on this broad right are
"those
established by law, or state or federal regulation, and applicable alike to
all persons." Cal.Civ.Code § 54.1(a). The mandatory language employed
indicates a clear legislative purpose to ensure that persons such as
plaintiff shall not be denied access to public facilities while accompanied
by their service dogs. [FN11] Through these provisions, the California
Legislature has determined that in the absence of legal authority to the
contrary, there are no circumstances in which it would be reasonable to
exclude a service dog from a public facility. See Cal.Civ.Code § 54.1. For
purposes of applying section 504 to entities which are also covered by
California Civil Code §§ 54.1 and 54.2, such as the defendant school
district, service, signal and guide dogs are presumptively entitled to
access. Thus, in a case such as the one at bar, a facility covered by Civil
Code §§ 54.1 and 54.2 may not claim that it cannot reasonably accommodate a
disabled person's choice to use a
service, guide or signal dog under section 504 on grounds that to do so
would impose an undue administrative or financial burden on the institution.
FN11. Defendants' argument that California Civil Code § 54.2 has no
application where the handicapped person does not require the services of
the dog to attain access to a public facility cannot be countenanced.
Defendants readily concede that there is a strong state policy in California
evidenced by numerous legislative enactments, to integrate disabled
individuals into society on a full and equal basis. See, e.g., Cal.Civ.Code
§§ 51, 54.1, 54.2, 55; Cal.Penal Code § 365.5. These provisions would have
no meaning were they construed to permit a public facility to substitute its
own judgment as to whether a disabled person requires the assistance of an
auxiliary aid, whether it be a service dog or a wheelchair, to gain access
to its premises. Under this theory, a public facility could ban wheelchairs
from its
premises as long as it provided attendants to carry mobility impaired
persons from place to place. The guarantees embodied in both California
Civil Code § 54.1 and the anti-discrimination mandate of section 504 must
mean more than this. For the reasons I have explained above, California
Civil Code §§ 54.1 and 54.2 apply to public schools, and plaintiff is
entitled to their protection. Plaintiff uses the service dog to overcome the
physical limitations resulting from her cerebral palsy. The service dog is
specially trained to assist plaintiff in achieving greater physical
independence. The evidence shows that the dog received two years of training
from Canine Companions before being matched with plaintiff and performs
tasks that she cannot perform herself. Bergin Declaration at 2-3; Christine
Sullivan Declaration at 2; Michelle Sullivan Declaration at 2. It is
therefore clear that plaintiff has a near absolute right under state law to
be accompanied by her
service dog at school. *960 Defendants seek to justify the exclusion of
plaintiff's service dog on two grounds. First, that the dog is unnecessary,
and second, on space and health concerns. Neither justification is
persuasive. Defendants' assertion that plaintiff does not need the service
dog at school, and thus cannot benefit from the statutory scheme must be
rejected in view of their admission that due to plaintiff's physical
limitations she must rely on others to perform various physical tasks that
she cannot perform herself. They further concede that such tasks include
those which may be performed by a service dog, such as retrieving dropped
items. They insist, however, that these circumstances are of no real concern
because plaintiff needs to have those tasks performed infrequently. Joseph
Declaration at 3, para. 8; Murphy Declaration at 3, para. 6. Defendants'
argument not only demonstrates a lack of sensitivity to the special needs of
physically disabled
people, it also appears to be contradicted by their own affidavits, and
finally, may well be irrelevant to her section 504 claim. Plaintiff's
physical mobility is severely restricted as a result of cerebral palsy. As
she has eloquently described in her affidavit, to live a life dependent on
others to perform simple physical tasks is painful and difficult. By using a
service dog who she controls to perform these tasks, plaintiff is able to
exercise greater control over her environment and achieve greater
independence in all aspects of her life. By denying access to plaintiff's
service dog, defendants have greatly diminished the dog's usefulness to
plaintiff and, thereby, have deprived her of her independence. See Christine
Sullivan Declaration at 4; Michelle Sullivan Declaration at 5. The
protection created by California Civil Code §§ 54.1 and 54.2 would be
seriously undermined were defendants able to deny plaintiff's right to use
the service dog outside of school
by prohibiting her from being accompanied by the service dog in school. Thus
whether or not plaintiff requires the services of the dog to perform
particular tasks for her during the school day is simply not dispositive.
Defendants' decision to exclude the service dog from their premises is
predicated on asserted space and health concerns, as well as their own views
about plaintiff's social and emotional development. See Declaration of
Pennee Hughes at 7, para. 16(a)-(f). The California Legislature, however,
has determined that concerns of this character may not override the right of
a disabled person who uses a service dog to have full and equal access to
public facilities accompanied by his or her dog. As a result, the reasons
articulated by defendants for excluding plaintiff's service dog from their
premises do not satisfy the defendants' burden of demonstrating that
reasonable accommodations are "neither practicable nor possible" for
purposes of section 504 of
the Rehabilitation Act of 1973. See Sisson v. Helms, 751 F.2d at 993.
Defendants' corollary decision to create an Individualized Educational
Program ("IEP") for plaintiff that likely precludes her ability to be
accompanied by her service dog also violates section 504. To repeat,
plaintiff is a person who uses a service dog as a matter of right under
state law. Under section 504 of the Rehabilitation Act of 1973, defendants
are therefore required to develop an IEP which incorporates plaintiff's
choice to use a service dog. By placing plaintiff in a classroom taught by a
person known to have severe allergies to animal dander, defendants have
failed in their obligation to ensure that plaintiff will have meaningful
access to their educational program. Choate, 469 U.S. at 301, 105 S.Ct. at
720. This conduct can only be characterized as "unreasonable and
discriminatory." Davis, 442 U.S. at 413, 99 S.Ct. at 2370. Under these
circumstances, I must conclude that plaintiff
has demonstrated a clear probability of success on the merits of her federal
handicap discrimination claim. 2. California Civil Code Sections 54.1 and 54
2 For the reasons discussed above, plaintiff has also succeeded in
demonstrating a clear probability of success on her state *961 law claim
predicated on California Civil Code §§ 54.1 and 54.2. C. Irreparable
Injury/Balance of Hardships Plaintiff has also shown that she will likely
suffer grave and irreparable injury if a preliminary injunction does not
issue. Her declarations amply demonstrate that each day she is forced to be
separated from her service dog in school, his usefulness to her is
diminished. Christine Sullivan Declaration at 4, paras. 14, 15; Michelle
Sullivan Declaration at 5, paras. 15, 18 and 19. As a consequence of
defendants' conduct, plaintiff's ability to function as an independent
person, according to her own self- definition, both in and out of school is
injured daily. Neither an award of
damages nor a permanent injunction following the conclusion of this
litigation could possibly restore to plaintiff the loss of independence she
is likely to suffer in the interim as a result of defendants' conduct.
Moreover, the balance of hardships tips strongly in plaintiff's favor. The
defendant school district has shown only that it will suffer the apparently
minor inconvenience of having to restructure plaintiff's educational program
in order to accommodate her service dog. In view of its legal obligation to
do so, however, this type of inconvenience cannot outweigh the injury
suffered by plaintiff to both her working relationship with her dog and her
dignity and self-respect. Defendants' additional argument that they have an
interest in the quality of plaintiff's educational program that would be
injured by the requested injunction is, at best, disingenuous. As her papers
reflect, plaintiff is fully aware that, due to her teacher's animal dander
allergies,
her placement will likely have to be changed as a result of her choice to
use her service dog in school. Given the limited nature of the special
education program at Hogan, it may even be that the quality of her
educational program will be diminished. It would appear, however, that
plaintiff and her parents have determined that the benefits to be gained
from plaintiff's use of the service dog in all aspects of her life outweigh
any negative effects on the quality of her formal education. This is a
choice that belongs solely to plaintiff and her parents, and not the
defendant school district. For these reasons, I conclude that plaintiff has
satisfied the requirements for preliminary relief and an order enjoining
defendants from preventing plaintiff from bringing her service dog to school
D. Remedy Having determined that plaintiff is entitled to a preliminary
injunction, I must now decide the appropriate scope of the remedial decree.
Although the state law
guarantee of equal protection prevents defendants from excluding the service
dog from their premises, the space and health concerns which defendants
contend motivated their initial decision remain relevant in determining the
appropriate manner of incorporating the service dog into the school
environment. [FN12] Although I have held that plaintiff is entitled to be
accompanied by her service dog at school, it would be entirely reasonable
for defendants to take steps to ensure that plaintiff's choice is
accommodated in a manner that does not injure the legitimate and legally
protectable rights of others. Thus, as plaintiff concedes, her placement
will likely have to be changed once the service dog is incorporated into her
school program due to the allergies of her primary teacher. On the other
hand, it is important to note that defendants are required to place
plaintiff in the least restrictive environment possible, given the choices
she has made. Martinez, 861 F.2d
at 1506. Accordingly, defendants may not alter *962 plaintiff's placement to
accommodate the purely personal feelings of others, either students or
faculty, about dogs in the school environment. Conduct of this character
would clearly contravene the purpose of section 504 "to protect ...
handicapped persons from deprivations based on prejudice, stereotypes and
unfounded fear." Arline, 480 U.S. at 287, 107 S.Ct. at 1131. FN12. Of
principle concern is the suggestion that plaintiff's primary teacher is
severely allergic to animal dander. I emphasize here, however, that
defendants' belief that the service dog would impede plaintiff's social and
emotional development, which is expressed throughout the defendants'
declarations, may play no role in the decision as to how best to incorporate
the service dog into plaintiff's educational program. As I explain at length
in the text, section 504 compels defendants to respect plaintiff's choice
about how best to overcome the
limitation created by her physical disability. On the record before me, I
cannot determine whether defendants may be able to accommodate plaintiff and
her service dog by simply altering plaintiff's placement in a manner
consistent with the objectives outlined in her current IEP, or whether more
fundamental changes are required. Although it may be that plaintiff can no
longer remain in Ms. Murphy's physically handicapped classroom, defendants'
declarations suggest that there may be another class which would meet the
educational objectives outlined in plaintiff's current IEP. See Declaration
of Pennee Hughes at 8, para. 16(e). On the other hand, it may be that due to
the limited nature of the special education program at Hogan High School, a
new IEP will have to be created. For example, although it appears that Hogan
High School is the only campus in the Vallejo Unified School District that
is fully wheelchair accessible, Declaration of Pennee Hughes at 8 para.
16(e), there may be another partially accessible campus which offers special
education classes that are appropriate for plaintiff's educational needs. In
the final analysis, once plaintiff's right to be accompanied by her service
dog is accepted as a given, decisions regarding an appropriate placement are
educational decisions which are properly the subject of the EHA procedures
described at Section I(B)(2) above. For these reasons, I must defer the
decision as to plaintiff's proper placement to the established
administrative procedures mandated by the Education of the Handicapped Act,
20 U.S.C. § 1400. Accordingly, IT IS HEREBY ORDERED as follows: 1.
Defendants and their employees, agents, or any and all other persons acting
on defendants' behalf or under defendants' control are hereby RESTRAINED
from interfering in any way with plaintiff's right to be accompanied by her
service dog while attending public school. 2. Defendants shall convene a new
IEP within
seven (7) days of the effective date of this order for the purpose of
modifying plaintiff's existing educational program, or creating a new IEP
which ensures that plaintiff's right to be accompanied by her service dog in
all aspects of her educational program is not impaired. 3. The modified or
new IEP shall be in place so that plaintiff may be accompanied by her
service dog no later than twenty (20) days thereafter. The parties shall
submit a status report to the court at that time demonstrating that this
order has been complied with. IT IS SO ORDERED. E.D.Cal.,1990. END OF
DOCUMENT