UNITED STATES’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

In its motion for summary judgment, Defendant Gates Chili Central School District (the District) attempts to complicate a straightforward case that raises a narrow question of law, has a clear legal test, and involves a limited number of facts material to that test.  The District relies largely on facts that are immaterial to the legal test an individual must meet as the handler of a service dog in school:  The service dog must be under control and housebroken, and the school is not responsible for providing “care or supervision” of the dog.  28 C.F.R. § 35.136.  The District does not dispute these criteria or cite to any case law to the contrary.  The District also does not dispute the limited facts that are material to that legal test—facts that show D.P. was the handler of her service dog in school.

Having failed to support its case on the merits, the District argues that the declaratory and injunctive relief sought by the United States is moot.  But again its argument is not supported by the law or facts.  And finally, after litigating this case for more than four years, the District challenges the United States’ authority to enforce Title II of the Americans with Disabilities Act (ADA).  The District’s reading of the statute misunderstands its text, purpose, and legislative history.  There is an overwhelming consensus among federal courts that have addressed this issue:  the Attorney General has authority to enforce Title II.

Accordingly, the Court should deny the District’s motion for summary judgment.

1. THE DISTRICT’S ARGUMENT THAT D.P. COULD NOT HANDLE HER SERVICE DOG IN SCHOOL IS UNSUPPORTED BY THE LAW AND FACTS

“[T]he crux of a summary judgment analysis is whether the movant has established entitlement to judgment as a matter of law.”  Baker v. Anschutz Expl. Corp., 68 F. Supp. 3d 368, 373 (W.D.N.Y. 2014), adhered to on reconsideration, No. 11-CV-6119 CJS, 2016 WL 981858 (W.D.N.Y. Mar. 15, 2016) (Siragusa, J.) (citation omitted).  The District falls far short of this burden.  The District does not cite case law sufficient to support a decision in its favor.  And the majority of the District’s Local Rule 56 Statement of Facts and exhibits are immaterial and largely irrelevant to the governing test in the ADA regulation.  The District’s motion for summary judgment should thus be denied.

1. The District’s Argument Is Unsupported by the Law.

The District agrees that the “handler” of a service dog in school only has two related responsibilities under the Title II regulation: (1) “A service animal shall be under the control of its handler”; and (2) “[a] public entity is not responsible for the care or supervision of a service animal.”  Def. Mem. Law in Supp. Mot. Summ. J. (Def. Mem.) 11 n.1, ECF No. 74-22 (citing 28 C.F.R. § 35.136(d)&(e)).  At bottom, this case concerns whether D.P. required the District to be responsible for care, supervision, or control of her service dog.  And this Court has further narrowed the issue to the single question of “control.”  Order 12-13, ECF No. 28.  If D.P. could be considered to be in “control” of her service dog within the meaning of the ADA regulation, then she could “handle” her service dog.  See id.  If she could “handle” her service dog, then the District’s additional-handler requirement violated the ADA.  See 28 C.F.R. § 35.136.

The District essentially argues that D.P. is too disabled to control or handle her service dog—an argument that runs counter to the text and purpose of the ADA.  See 42 U.S.C. §§ 12101(b), 12132; 28 C.F.R. § 35.136.  Tellingly, the District fails to cite case law interpreting the meaning of “control” in the ADA regulation.  Nor could it, as none of the case law supports the District’s argument.  Rather, the plain language of the regulation and the federal cases to address the issue—including this Court’s prior opinion—make clear that control can be established through tethering or other effective means.  Order 10-12; 28 C.F.R.§ 35.136(d); Alboniga v. Sch. Bd. Broward Cty. Fla., 87 F. Supp. 3d 1319, 1342 (S.D. Fla. 2015); Riley v. Sch. Admin. Unit #23, No. 15-CV-152-SM, 2015 WL 9806795, at *9-10 (D.N.H. Dec. 22, 2015).

Under the ADA, what diagnoses D.P. has, whether she can speak, or how she scored on a standardized test are immaterial to the question of control.  A fact is material if it “might affect the outcome of the suit under the governing law.”  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  It is undisputed that D.P.’s service dog was tethered to her throughout the school day and was never out of control.  Pl. L.R. 56 Statement Material Facts (SMF) ¶¶ 14, 18-21, ECF No. 69-2.  Therefore, D.P.’s service dog was under her control.

The District’s argument disregards these material facts and completely ignores that D.P.’s service dog was trained specifically for D.P., including training on how to respond appropriately to all the manifestations of her disabilities.  Pl. SMF ¶¶ 9-10; Denyer Decl. ¶¶ 4, 6-7, ECF No. 69-7.  And while it is undisputed that D.P. needed prompting and assistance from District staff for many daily tasks in school, that does not mean she needed more than “occasional reminders to give commands to the dog.”  See Def. Mem. 5-6.  In fact, especially given that District staff prompted D.P. for everything else throughout the day, the amount of prompting she needed related to her service dog was minimal.

The District’s own witnesses testified that the service dog needed few, if any, commands during the school day.  See, e.g.,BOCES 30(b)(6) Dep. (Martorana) 139:19-25.  For example, the District could guide D.P. where to go and the dog would follow without any prompting or commands by District staff.¹  And even if D.P. needed to be prompted more than once to get her dog, this took seconds to do and happened primarily during transitions between activities.  Cook Dep. 147:4-24 (tethering took “[s]econds”), 149:1-13 (prompting D.P. to get her dog took “[s]econds”); Schlumpf Dep. 84:4-25 (testifying that D.P. tethers herself for transitions about “seven or eight times” a day, either independently or with prompting).  Thus, the District’s argument that D.P.’s disability itself “rendered her unable to handle her own dog” is unsupported by both the law and facts.  Def. Mem. 5.

2. The District Has Failed to Proffer Evidence Sufficient to Support Its Motion.

The District attempts to complicate this case by citing to stale, irrelevant, and immaterial facts.  In addition, the District relies on conclusory allegations and speculative assertions unsupported by the record, which are insufficient to support its motion.   

1. The District Relies on Old Correspondence and Documents Addressing a Different Issue Under a Different Law that Do Not Change the Outcome Here. 

The majority of the facts the District relies upon are from a New York State Education Department (SED) administrative due process hearing pursuant to the Individuals with Disabilities Education Act (IDEA), and related emails and documents from 2012-2013 leading up to that IDEA hearing.  The District makes much out of statements made by D.P.’s mother, H.P., in these old emails.  But H.P.’s statements were made in the context of her request for special education services under IDEA—a different law with different regulations and requirements than the ADA.

As the U.S. Supreme Court has explained, the ADA may require school districts to take different or additional steps to prevent discrimination against students with disabilities beyond the measures required by IDEA, including in the service animal context.  See Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 758 (2017).  The Court summarized: “In short, the IDEA guarantees individually tailored educational services, while Title II . . . promise[s] non-discriminatory access to public institutions.”  Id. at 756.  As a result, “IDEA and Title II differ in both ends and means.”  K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1097 (9th Cir. 2013).

For these reasons, the District’s reliance on the administrative findings in the IDEA proceedings and H.P.’s related statements in 2012-2013 are misplaced.²  H.P. is not a party to this litigation and her requests for related services under IDEA involve different legal issues and standards than the ADA case before the Court.  Under IDEA, H.P. and her attorneys asked the District to incorporate D.P.’s service dog into her Individualized Education Program (IEP) and to provide handling services for the dog as a related service, including issuing a few commands to the dog.  See, e.g., Def. Mem. 8; Def. Ex. Z, ECF No. 74-12 (requesting “that a handler for the dog should be included as a service in D.P.’s IEP”).³  Having an adult issue commands to the service dog in school may have been helpful and had educational benefits for D.P.—by, for example, using the dog to teach D.P. certain motor or communication skills.  While that is relevant under IDEA, it does not factor into the analysis under the ADA, nor does it mean that District staff were required to issue commands to keep D.P.’s service dog under control.  In fact, the 2012 requests from H.P. cited by the District explain that the requested commands were to maximize the usefulness of the dog to D.P. and to provide educational benefits to D.P.⁴  The commands were not required for control of the dog.

Moreover, when discussing D.P.’s ability to be the handler of her service dog in kindergarten, H.P. did not use the term “handler” as it is defined in the ADA regulation or as it is used in the ADA context.⁵  For example, in those same emails, H.P. states that the service dog was tethered to D.P. throughout the school day, and that D.P. would hold onto her service dog’s harness and walk independently around school.  See, e.g.,Def. Exs. J, L, M, Q, T, DD, EE, ECF Nos. 74-10, 74-12, 74-13, 74-14.  Therefore, D.P. had control of her service dog and was the “handler” as defined by the ADA—even if H.P. did not understand that.  This context shows how little relevance H.P.’s conclusory assertions about D.P.’s ability to handle her dog in 2012-2013 have to this case.

H.P. also admits that she underestimated her daughter early on, when the service dog was still new to her, and as a result, she asked for things (such as an aide to issue commands to the dog) that she later learned D.P. did not need.  H.P. Dep. 31:9-25 (explaining that early on she thought someone had to issue oral commands, but it was “not that [D.P.] wasn’t doing the nonverbal component”), 32:2-8 (“I believe that we all underestimated D.[P.]”).  Moreover, the District completely disregards the four years thereafter during which H.P. requested that the District recognize D.P. as the handler of her service dog, and the District refused to do so.⁶  See, e.g., Def. Ex. KK at 6, ECF No. 74-17 (explaining that H.P.’s 2015 IDEA complaint requested “for the student’s IEP . . . to designate the student as the dog’s handler”). The 2012-2013 correspondence is thus insufficient to support the District’s motion.

2. The District’s Declarations Were Crafted for Summary Judgment and Contain Unsupported Conclusions and Speculation. 

To establish a “genuine” issue for trial, the District “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).  “Factual issues created solely by an affidavit crafted” for “a summary judgment motion are not genuine issues for trial.”  Def. Mem. 4 (quoting Baker,68 F. Supp. 3d at 373).  Moreover, “a party may not create an issue of fact by submitting an affidavit . . . that, by omission or addition, contradicts the affiant’s previous deposition testimony.”  Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citations omitted).  Even where there is not a direct contradiction, the Second Circuit has “recognized that a deposition of a witness, subject to cross-examination, is generally more reliable than an affidavit.”  Id. (citation omitted).

Yet full pages of the District’s legal argument consist of factual issues created solely by declarations crafted by the District for summary judgment.  Def. Mem. 5-7.  In addition, these declarations and the District’s motion are full of conclusory allegations and speculation that are contradicted by the declarants’ own deposition testimony.  Thus, the Court should disregard the District’s unreliable and conclusory declarations.  See Hayes, 84 F.3d at 619.
For example, the District asserts:  “D.P. required school personnel or the adult service dog handler provided by H.P. to actually issue commands to her dog, as opposed to occasionally reminding D.P. to do so.”  Def. Mem. 5.This conclusory statement is supported only by citations to three declarations crafted by the District for summary judgment and the report of the District’s retained expert.  None of these declarations explains what commands were purportedly required or why anyone needed to issue verbal commands to the service dog.

Notably, these same declarants—D.P.’s former classroom teacher and 1:1 aide—were deposed in this case.  And they testified that in the five years in question (2012-2017), they never issued commands to the service dog.  Carroll Dep. 167:17-19; Schlumpf Dep. 124:18-125:12.  The classroom teacher, Megan Carroll, also testified that the service dog was never a problem when the additional handler was out of the room.  Carroll Dep. 166:14-20.  Both declarants confirmed that D.P.’s service dog accompanied D.P. everywhere in school and was physically connected to her by a tether throughout the day.  Carroll Dep. 154:3-8, 156:22-23; Schlumpf Dep. 53:16-24, 72:5-19.  They confirmed that D.P. responded to prompting and would grab or pull up on her service dog’s harness to get the dog to stand up or walk.  Carroll Dep. 104:1-13, 106:2-24, 151:16-23; Schlumpf Dep. 83:1-11, 84:4-85:20, 93:2-21.

In addition, the deposition testimony of the District’s declarants shows that the service dog responded to environmental cues without any need for a command.  For example, if D.P.’s 1:1 aide said “get your dog,” the service dog would stand up in response.  Schlumpf Dep. 93:2-4, 94:16-25.  Similarly, D.P. and her dog would both stand up when the class started to transition.  Carroll Dep. 89:5-9; Schlumpf Dep. 93:2-4, 94:16-25.  The dog also responded to nonverbal cues from D.P.  See, e.g., Schlumpf Dep. 91:23-25, 93:12-21 (the dog stood when D.P. stood and sat down when D.P. sat down).  Because their bald assertions about a purported need for District staff to issue commands to the dog are unsupported by their own sworn testimony in this case, the Court should disregard the declarations of Megan Carroll and Jennifer Schlumpf submitted in support of the District’s motion.⁷  See Hayes, 84 F.3d at 619.

Likewise, the alleged safety concerns of a few declarants do not have any legal significance here.  The District argues that “classroom staff who worked directly with D.P. believed that it would be unsafe for the dog to be present without a separate handler.”  Def. Mem. 6 (citing Carroll and Schlumpf declarations).  Aside from this conclusory assertion, the District has failed to show that it was “unsafe” for the dog to be in school without the additional handler, that the service dog was ever out of control, or that anyone had to issue commands to control the dog.  Indeed, numerous witnesses have testified that D.P.’s service dog was always well-behaved, remained under control, and knew what to do when D.P. tried to elope, misbehaved, or was dysregulated—without the need for a command.⁸  Moreover, unsupported safety concerns based on speculative fears are not a legal grounds under the ADA for determining that D.P. could not control or handle her service dog.

The sole example the District provides to support why the staff “believed” it would be “unsafe” is an uncorroborated anecdote from Ms. Schlumpf about D.P. trying to go into the art room at the wrong time and then getting frustrated.  Def. Mem. 6-7 (citing Schlumpf Decl. ¶ 13).  Allegedly, when this happened, Ms. Schlumpf attended to D.P. and “the dog handler took care of the dog.”  Id.  But Ms. Schlumpf previously admitted that she does not know whether the additional handler did anything to care for the dog when this happened and that the service dog actually assisted D.P. in going in the right direction.  Schlumpf Dep. 98:7-19.  Ms. Schlumpf further testified that the service dog was always tethered to D.P. when walking around school, the dog always laid down when D.P. stopped without needing a command, and the dog was always under control.  See Schlumpf Dep. 72:5-23, 93:17-94:4, 95:15-23, 97:14-17.  In sum, the District’s only support for its purported safety concern is an incident during which no District staff issued commands to the dog, the dog remained tethered to D.P. and was under control the whole time, and the dog even assisted D.P. without being commanded to do so.

Therefore, the District’s declarations crafted for summary judgment are insufficient to support the District’s motion.

3. The District’s Expert Opinion Should Not Be Given Any Weight.

The District’s declaration of its retained expert (Dr. Cynthia Devore), along with her report, should not be given any weight in deciding summary judgment.  First, Dr. Devore is not qualified to opine on service dog handling.  Second, her declaration and report are replete with inadmissible and unreliable legal conclusions that attempt to redefine the meaning of “control” and “handler” in the Title II regulation.  Third, her opinions are based on immaterial facts and stereotyped views about what a person with D.P.’s diagnoses and cognitive functioning can do.⁹

First, absent any expertise or education regarding service dogs, Dr. Devore’s opinions on the subject exceed the scope of her qualifications and should be excluded.  Eagleston v. Guido, 41 F.3d 865, 874 (2d Cir. 1994) (affirming district court decision that “someone unfamiliar with arrest practices in New York was unqualified to testify about them”); Prohaska v. Sofamor, S.N.C., 138 F. Supp. 2d 422, 437 (W.D.N.Y. 2001).  The District’s sole expert in support of its motion, a general pediatrician and school physician, admitted that she has no expertise or training on service animals.  Devore Dep. 5:14-6:23, 140:2-4 (“I am not an expert on service animals.”).  Dr. Devore also testified that there is no established methodology for a pediatrician to determine whether a person can control a service dog, she does not know of anyone in her field who has opined on this question, and she has never before opined on whether a child could be the handler of service dog.  Devore Dep. 6:20-23, 128:3-20.

As this Court has previously held, “when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.”  Baker v. Anschutz Expl. Corp., 68 F. Supp. 3d 368, 375 (W.D.N.Y. 2014) (Siragusa, J.).  Here, Dr. Devore does not simply opine on a different area of medicine outside of pediatrics, she opines on issues outside of the field of medicine altogether.  See Foley v. United States, 294 F. Supp. 3d 83, 91-92 (W.D.N.Y. 2018) (excluding the testimony of a doctor who lacked “knowledge, skill, experience, training, or education” in the relevant area of medicine).  The Court should thus disregard Dr. Devore’s testimony and report.  See id. at 381 (excluding expert testimony on these grounds); see also New York v. UPS, Inc., No. 15-CV-1136 (KBF), 2016 WL 4735368, at *1, 8 (S.D.N.Y. Sept. 10, 2016) (excluding expert evidence under Rule 702 in a bench trial); Cordoves v. Miami-Dade Cnty., 104 F. Supp. 3d 1350, 1358 (S.D. Fla. 2015) (finding ADA-compliance expert who lacked “the necessary personal experience in service-animal training” unqualified to opine on whether an animal was a service dog under the ADA).

Second, under the Federal Rules of Evidence, experts may not present testimony in the form of legal conclusions or opine on issues of law in the case.  United States v. Articles of Banned Hazardous Substances Consisting of an Undetermined No. of Cans of Rainbow Foam Paint, 34 F.3d 91, 96 (2d Cir. 1994); see also Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992) (holding that “testimony regarding the ultimate legal conclusion . . . crossed the line and should have been excluded”).  Expert statements that repeatedly track the language of a statute or regulation or that use judicially defined terms constitute inadmissible legal conclusions, because they “invade the province of the court to determine the applicable law.”  United States v. Scop, 846 F.2d 135, 139-140, 142 (2d Cir. 1988) (citation omitted).

Yet, Dr. Devore opines that, because of her disability, D.P. could not “control” or “handle” her service dog.  Devore Decl. ¶ 7, ECF No. 74-4.This is a legal issue in the case properly reserved for the Court as factfinder here.  Moreover, Dr. Devore opines on numerous requirements for controlling a service dog that have no basis in the law.¹⁰  In doing so, she effectively reinterprets a regulatory term that is defined by the regulation and has already been interpreted by this Court.  28 C.F.R. § 35.136; Order 11-12 (finding that control can be established through tethering).  Thus, the Court should disregard Dr. Devore’s opinions about whether D.P. could control or handle her service dog as inadmissible legal conclusions.  See Scop, 846 F.2d at 139-42.¹¹

Third, Dr. Devore’s declaration and report fail to cite relevant facts in support of these legal conclusions, and instead rely on stereotyped views about children with D.P.’s diagnoses and cognitive functioning.  For example, an entire section of Dr. Devore’s report asserts that “D.P’s autism does not allow her to control her dog.”  Def. Ex. G at 42-43, ECF No. 74-5.  She also opines that, “[e]ven if the daily maintenance for that particular animal” is “minimal,” it would be too much for “a child who is autistic.”  Id. at 20.  In addition, Dr. Devore reasons that, because D.P.’s dog was trained to stop her from eloping (a manifestation of her autism), “it is illogical to assume that the child who is being prevented from running would have the ability to override the dog’s efforts to stop her by controlling the dog.”  Id. at 2.  In other words, Dr. Devore concludes that D.P. cannot control her service dog because she cannot “override” the dog’s training.  Dr. Devore’s flawed logic discriminates against many individuals with autism and completely misunderstands the regulatory meaning of control.  Her opinions are thus unhelpful to the Court as factfinder.  See Fed. R. Evid. 702 (expert testimony must “help the trier of fact to understand the evidence or to determine a fact in issue”).

For all of these reasons, the Court should not give any weight to the District’s expert declaration and report.

3. The United States Has Met Its Burden of Proving that D.P. Was Capable of Handling Her Service Dog in School.

The District argues that “DOJ cannot bear its burden of proving that D.P. was capable of handling the dog,” because the United States’ expert did not opine on this issue.  Def. Mem. 2.  The District’s argument is once again not supported by case law.  There is no legal requirement that the United States meet its burden of proof through expert testimony in a civil rights case.  See, e.g., Brink v. Union Carbide Corp., 41 F. Supp. 2d 402, 405 (S.D.N.Y. 1997) (finding no expert testimony required in an age discrimination case).  The undisputed material facts, as supported by the District’s own exhibits and witnesses, clearly establish that D.P. was capable of handling her dog.  Moreover, as explained above, the question of whether D.P. could legally control and thus handle her service dog is outside the province of expert testimony.  It would have been improper for the United States’ expert to instruct the Court what result to reach and thus attempt to substitute his judgment for the factfinder’s.  See Scop, 846 F.2d at 139-42. 

Rather, the opinions the United States’ expert properly offered on D.P.’s ability to issue commands, control her environment, and respond to prompting establish the facts necessary to determine that D.P. could control and handle her service dog pursuant to the ADA regulation.  See Calculator Decl. ¶ 4, ECF No. 69-6.  In addition, the District’s own witnesses and exhibits support the limited facts that affect the outcome of this suit under the governing law and thus qualify as “material.”  Those facts clearly show that D.P. was the handler of her service dog in school and had control of her service dog at all times, as a matter of law.

First, D.P.’s service dog was generally tethered to her in school.  Second, D.P.’s service dog was always with D.P. in school and was trained to do work and perform tasks for D.P., including without commands.  Third, although D.P. cannot speak, she communicated through a variety of means; with respect to her service dog, this included by pulling up on her dog’s harness.  Fourth, D.P. responded when classroom staff prompted her to do things, as did her service dog without any direct commands.  Fifth, D.P.’s service dog was very well-behaved and mostly laid on the floor all day.  In the five years in question (fall 2012 to summer 2017), the dog never bit, barked, jumped on anyone, defecated, urinated, damaged school property, or was otherwise “out of control.”  Those are the facts material to the question posed by the Court, and they are all corroborated by the District’s own witnesses and exhibits appended to its motion.  See, e.g., Pl. SMF ¶¶ 4, 9-10, 14-21; Def. Ex. A at ¶¶ 30, 48, 52, ECF No. 74-2; Def. Exs. J, L, M, Q, T, DD, EE, ECF Nos. 74-10, 74-12, 74-13, 74-14.

In light of this, there cannot be a genuine dispute as to these facts, which all support a finding in favor of the United States.  Therefore, the District’s motion should be denied.

2. THE RELIEF SOUGHT IS NOT MOOT

The District asserts that because D.P. moved out of the District, the United States’ requests for injunctive and declaratory relief are moot, but this argument is unsupported by the law and facts.¹²   “The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.”  Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983).  Neither criteria is met here.

Importantly, the District’s additional-handler requirement remains in place.  Order 4-5 (“[T]he District has refused, and continues to refuse, to allow [D.P.’s] service dog to accompany her at school . . . unless the Parent provides an adult dog handler.”); Def. 30(b)(6) Dep. (Ward) 121:14-20, 258:11-17 (explaining the District would still require an additional handler if D.P. needs any assistance related to her service dog).¹³  In analyzing mootness, courts have asked whether the public entity “has consistently applied a new policy or adhered to a new course of conduct.”  Nat’l Ass’n of Bds. of Pharm. v. Bd. of Regents of Univ. Sys. of Ga., 633 F.3d 1297, 1310 (11th Cir. 2011) (citation and internal quotation marks omitted).  The District has neither changed its policy nor its course of conduct.  The District continues to assert that its additional-handler requirement is legally justified.  Def. Mem. 1-2, 4-11.  Thus the next child with a service dog in the District will be subject to the same policy.  In light of these facts, it is clear that the declaratory and injunctive relief sought is not moot.¹⁴

In addition, this case was brought by the federal government, which retains a distinct interest and suffers a separate injury-in-fact from private complainants.  See, e.g., E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 288 (2002); United States v. East River Hous. Corp., 90 F. Supp. 3d 118, 134 (S.D.N.Y. Mar. 2, 2015).  The United States brought this case to further the public interest in equal access to schools for persons with disabilities.  Indeed, one of Congress’s core purposes in enacting the ADA was to “ensure that the Federal Government plays a central role in enforcing the standards established . . . on behalf of individuals with disabilities.”  42 U.S.C. § 12101(b)(3).  As a result, the status quo of a policy of disability discrimination creates a distinct harm to the United States that can only be remedied with declaratory and injunctive relief, including policy changes and training on Title II of the ADA. 

Moreover, the Court has broad discretion to award declaratory and injunctive relief here.  See Kapps v. Wing, 404 F.3d 105, 122 (2d Cir. 2005).  The Second Circuit has held that where there are past violations of the law, district courts are free to assume that there will be future violations and can award injunctive relief to stop future misconduct.  Id. at 112, 123; Henrietta D. v. Bloomberg, 331 F.3d 261, 290 (2d Cir. 2003).  Because the District maintains a discriminatory policy, declaratory and injunctive relief are still warranted and fall squarely within the Court’s discretion to award.¹⁵

3. THE ATTORNEY GENERAL HAS A RIGHT OF ACTION TO ENFORCE TITLE II OF THE ADA

Lastly, after litigating this Title II case for more than four years, the District now contends that the Attorney General does not have authority to sue to enforce Title II of the ADA.  The District has forfeited the argument by not making it sooner.¹⁶  This argument also runs counter to the consensus of federal courts that have addressed the issue, including a recent decision by the U.S. Court of Appeals for the Eleventh Circuit.  The text, purpose, and legislative history of the ADA all demonstrate that the Attorney General has authority to bring a civil action to enforce Title II. 

1. Federal Courts to Address this Question Have Recognized the Attorney General’s Authority to Sue Under Title II.

Aside from a reversed district court opinion outside this Circuit, every court to consider the question has recognized the Attorney General’s authority to sue to enforce Title II of the ADA.  See, e.g.,United States v. Florida, No. 17-13595, 2019 WL 4439465, at *23-24 (11th Cir. Sept. 17, 2019) (holding that the Attorney General has a cause of action to enforce Title II of the ADA), reversing and remanding C.V. v. Dudek, 209 F. Supp. 3d 1279, 1282 (S.D. Fla. 2016); United States v. Mississippi, No. 3:16-cv-00622-CWR-FKB, Dkt. No. 204, at *4-5 (S.D. Miss. May 13, 2019) (attached as Plaintiff Exhibit G) (holding that the Attorney General has authority to bring lawsuits under Title II); United States v. Harris Cty., No. 4:16-CV-2331, 2017 WL 7692396, at *1 (S.D. Tex. Apr. 26, 2017) (“[T]he plain language of the ADA, its legislative history, and the implementing regulations clearly establish that the United States has authority to bring lawsuits under Title II of the ADA.”); United States v. Virginia, No. 3:12CV59-JAG, 2012 WL 3034148, at *2 (E.D. Va. June 5, 2012) (“[T]he United States has the authority to initiate legal action to enforce Title II of the ADA.”); Smith v. City of Phila., 345 F. Supp. 2d 482, 489-90 (E.D. Pa. 2004) (dismissing private individual’s Title II claim but retaining jurisdiction over United States’ Title II claim because United States has “separate and independent basis for jurisdiction under Title II of the ADA and Section 504 of the Rehabilitation Act”); United States v. City & Cnty. of Denver, 927 F. Supp. 1396, 1399-1400 (D. Colo. 1996) (finding that the Department of Justice had met the requirements necessary to bring a Title II claim).  Even an earlier ruling by a different district judge in Dudek found such authority.  A.R. ex rel. Root v. Dudek, 31 F. Supp. 3d 1363, 1371 (S.D. Fla. 2014). 

2. In Enacting Title II, Congress Ratified and Incorporated Longstanding Administrative and Judicial Interpretations of the Attorney General’s Authority to Enforce Title VI and the Rehabilitation Act.

Title II’s enforcement provision states that “[t]he remedies, procedures, and rights set forth in [Section 505 of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of [Title II].”  42 U.S.C. § 12133.  Section 505 of the Rehabilitation Act, in turn, incorporates the “remedies, procedures, and rights” of Title VI of the Civil Rights Act of 1964.¹⁷  29 U.S.C. § 794a(a)(2) (citing 42 U.S.C. § 2000d et seq., among other references). 

The District argues that the Attorney General cannot sue to enforce Title II because the Attorney General is not a “person alleging discrimination.”  Def. Mem. 11-15.  The District’s argument is baseless.  Title II does not authorize the Attorney General to file suit by equating the Attorney General with a “person alleging discrimination.”  Instead, Title II provides “persons” alleging discrimination the “remedies, procedures, and rights”—including the prospect of an Attorney General enforcement action—that are provided to persons under the Rehabilitation Act and Title VI.

“[W]here, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”  Lorillard v. Pons, 434 U.S. 575, 581 (1978); see also Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (“When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.”); accord Florida, 2019 WL 4439465, at *4.  That general rule controls the outcome here:  Congress incorporated an enforcement scheme into Title II of the ADA with full knowledge that it had been interpreted to include a right of action by the Attorney General.  In doing so, Congress ratified that longstanding interpretation.

For this reason, the District’s reliance on the recent Supreme Court case, Return Mail, Incorporated v. United States Postal Service, 139 S. Ct. 1853 (2019), is misplaced.  In that case, there was no dispute that the Postmaster General’s enforcement authority turned on whether he is a “person” under the Leahy-Smith America Invents Act of 2011.  See id. at 1862 (holding that a federal agency is not a “person” unless there is an affirmative showing of statutory intent that Congress intended for the agency to have enforcement authority).  But as discussed above, the United States’ statutory authority to enforce Title II does not rest on whether the Attorney General is a “person alleging discrimination” under § 12133; he is not.  Rather, the United States has statutory enforcement authority because the “remedies, procedures, and rights” of the “person alleging discrimination” (e.g., an aggrieved person) include the possibility of a lawsuit by the Attorney General to address her complaint and enforce Title II.¹⁸ 

1. The “remedies, procedures, and rights” available under both Title VI and the Rehabilitation Act include the prospect of a lawsuit by the Attorney General.

From its enactment in 1964, the prospect of the Attorney General bringing a cause of action under Title VI was part of the “remedies, procedures, and rights” available to a person alleging discrimination.  Title VI’s enforcement procedures are detailed in its implementing regulations, adopted shortly after the statute was passed.  These regulations provide persons who believe that they have been victims of unlawful discrimination an opportunity to file complaints with federal agencies, which then conduct investigations.  See, e.g., 29 Fed. Reg. 16,301 (Dec. 4, 1964) (codified at 45 C.F.R. § 80.7(b)-(c)); see also 31 Fed. Reg. 10,267 (July 29, 1966) (codified at 28 C.F.R. § 42.107(b)-(c)).  If unsuccessful at resolving a meritorious complaint informally, the agency may refer the matter to DOJ to bring “appropriate proceedings” (including lawsuits) against Title VI violators.  45 C.F.R. §§ 80.7(d), 80.8(a); 28 C.F.R. §§ 42.107(d), 42.108(a).  Similarly, DOJ’s Guidelines for Enforcement of Title VI cite “appropriate court action” against noncompliant recipients of federal financial assistance as one of the available “alternative courses of action” that agencies should consider before terminating federal funding.  31 Fed. Reg. § 5292 (Apr. 2, 1966) (28 C.F.R. § 50.3(c)(I)(A)-(B)); see also Florida, 2019 WL 4439465, at *5-9 (discussing DOJ’s Enforcement Guidelines for Title VI).

Persons alleging discrimination under the Rehabilitation Act also have the prospect of an Attorney General enforcement action as part of their available “remedies, procedures, and rights.”  While there was no explicit enforcement provision in the Rehabilitation Act when it was first enacted in 1973, regulations issued in 1977, with the oversight and approval of Congress, incorporated the Title VI complaint and enforcement procedures.  Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 & n.15 (1984).  In doing so, the regulations created an administrative enforcement process for the Rehabilitation Act that could culminate in a lawsuit by the Attorney General.  See 42 Fed. Reg. 22,685, 22,694-22,695 (May 4, 1977) (codified at 45 C.F.R. § 84.61) (incorporating Title VI regulations, including 45 C.F.R. §§ 80.7-80.8).  The U.S. Supreme Court recognized that these 1977 Rehabilitation Act regulations “particularly merit deference” because they were drafted with congressional committee participation and “Congress itself endorsed the regulations in their final form.”  See Darrone, 465 U.S. at 634 & n.15.

In 1978, Congress amended the Rehabilitation Act to add Section 505, which expressly incorporates the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964.”  Pub. L. No. 95-602, § 120(a), 92 Stat. 2982 (1978) (codified at 29 U.S.C. § 794a(a)(2)).  That provision “was intended to codify the [1977] regulations . . . governing enforcement of § 504,” the provision prohibiting disability discrimination, as “a specific statutory requirement.”  Darrone, 465 U.S. at 635 & n.16.  In other words, in enacting Section 505, Congress made available to victims of disability discrimination an enforcement process that could lead to a DOJ enforcement action in federal court.  See Florida, 2019 WL 4439465, at *9-13.

2. When enacting the ADA, Congress ratified and incorporated the longstanding interpretation that “remedies, procedures, and rights” include the possibility of lawsuits filed by the Attorney General.

In 1990, when Congress incorporated into Title II of the ADA the “remedies, procedures, and rights” available to persons under Section 505 of the Rehabilitation Act and Title VI of the Civil Rights Act of 1964, Congress adopted and ratified a federal enforcement scheme that it knew included the prospect of a DOJ lawsuit.  See Florida, 2019 WL 4439465, at *23 (holding that the “express statutory language in Title II adopts federal statutes that use a remedial structure” that may culminate in a lawsuit by the Attorney General); see also id. at *16-18.  Indeed, Congress’s core purpose in enacting Title II was to expand the reach of Section 504 of the Rehabilitation Act to all state and local government programs, activities, and services (not just those that receive federal funds) as part of a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”  42 U.S.C. § 12101(a)(3), (b)(1) and (3), 12132; H.R. Rep. No. 101-485(II), at 84 (1990) (House Report II).

Given Congress’s explicit goal of expanding the reach of the Rehabilitation Act, it would make little sense to construe Title II to create a weaker enforcement mechanism than those available under the Rehabilitation Act and Title VI.¹⁹  As the Supreme Court recognized in Barnes v. Gorman: “The ADA could not be clearer that the ‘remedies, procedures, and rights”’ of Title II “are the same as the ‘remedies, procedures, and rights set forth in’ § 505(a)(2) of the Rehabilitation Act” and Title VI.  536 U.S. 181, 189 n.3 (2002); see also 42 U.S.C. § 12201(a) (the ADA should not be construed to provide less protection than the Rehabilitation Act).

To that end, and at Congress’s direction, DOJ issued regulations that establish a similar federal enforcement scheme for Title II as those used to enforce Title VI and the Rehabilitation Act.  See 42 U.S.C. § 12134(a)-(b); 28 C.F.R. §§ 35.170-35.174, 35.190.  Under the regulation, DOJ, in addition to other designated federal agencies, has authority to investigate any complaint it receives alleging a violation of Title II.  28 C.F.R. § 35.190(e).  If, after an investigation, a federal agency believes that an administrative complaint alleging discrimination under Title II has merit, it will attempt to negotiate a resolution with the alleged violator.  28 C.F.R. §§ 35.172, 35.173.  If those efforts are unsuccessful and a violation has been found, the agency shall refer the matter to DOJ for the possible filing of a lawsuit.  28 C.F.R. § 35.174. In doing so, the regulation fulfills one of Congress’s core purposes in enacting the ADA—to “ensure that the Federal Government plays a central role in enforcing the standards established . . . on behalf of individuals with disabilities.”  42 U.S.C. § 12101(b)(3).  Indeed, for more than twenty-five years, the Attorney General has brought lawsuits and entered into settlements to address violations of Title II.  For examples, see https://archive.ada.gov/enforce_current.htm (last visited Oct. 18, 2019); https://archive.ada.gov/enforce_archive.htm (last visited Oct. 18, 2019).

3. The ADA’s Legislative History Confirms that Congress Intended the Attorney General to Have a Cause of Action Under Title II.

The ADA’s legislative history confirms what the statutory text makes clear:  Congress intended to give the Attorney General a cause of action to enforce Title II.  Both the House and Senate committee reports accompanying the enactment of the ADA state that enforcement of Title II “should closely parallel the Federal government’s experience with section 504 of the Rehabilitation Act” and that the Attorney General “should use section 504 enforcement procedures and the Department’s coordination role under Executive Order 12250 as models.” House Report II, at 98; S. Rep. No. 101-116, at 57 (1989) (Senate Report). 

Significantly, the committee reports explain: “Because the fund termination procedures of section 505 are inapplicable to State and local government entities that do not receive Federal funds, the major enforcement sanction for the Federal government will be referral of cases by these Federal agencies to the Department of Justice,” so that the Department “may then proceed to file suits in Federal district court.”  House Report II, at 98 (emphasis added); Senate Report 57-58 (same).  Thus, the ADA’s legislative history confirms that Congress intended the Attorney General to have a cause of action to enforce Title II.   

3. The Different Language Congress Employed in Titles I and III of the ADA Does Not Alter the Conclusion that the Attorney General Can Bring Lawsuits Under Title II.

The District misinterprets the references to the Attorney General in the enforcement provisions of Titles I and III of the ADA to suggest that, in not using equally explicit language in Title II, Congress did not authorize the Attorney General to bring suit under Title II.  Def. Mem. 13-15.  This difference, however, is readily explained by the fact that, unlike with Title II, Congress had to be explicit with respect to enforcement of Titles I and III—that absent such specificity, Congress could not have conveyed its intention to grant enforcement authority to particular governmental actors, including the Attorney General.  See Florida, 2019 WL 4439465, at *5 (rejecting Florida’s comparison of the three titles’ enforcement provisions).

Title I’s enforcement section cross-references five different provisions of Title VII of the Civil Rights Act of 1964 (Title VII), which establish a complicated regime in which different enforcement actions may be taken by private complainants, the Equal Employment Opportunity Commission, and the Attorney General.  42 U.S.C. § 12117(a).  To make clear that Title VII’s division of authority also applies to Title I of the ADA, Congress avoided confusion by specifying the actors among whom the authority was divided.

Title III, unlike Titles I and II, does not merely incorporate a preexisting enforcement scheme.  While Title III incorporates the preexisting remedies and procedures of Title II of the Civil Rights Act of 1964, it expands on the Attorney General’s enforcement authority with new authority to seek damages and civil penalties not available in Title II of the Civil Rights Act.  42 U.S.C. § 12188(a)-(b).  Congress could not have expanded the enforcement power of the Attorney General under Title III of the ADA without express reference to the Attorney General.  

Title II of the ADA, on the other hand, incorporates a single, existing enforcement scheme established under Title VI and incorporated into the Rehabilitation Act.  As discussed above, when Congress enacted Title II, the Attorney General’s authority to enforce these two statutes through litigation had already been established.  See Florida, 2019 WL 4439465, at *23 (“In the other referenced statutes, the Attorney General may sue.  The same is true here.”).  While Titles I and III of the ADA could not make clear the Attorney General’s authority without explicit reference to the Attorney General, Congress could and did make such authority clear in Title II with a simpler cross-reference.²⁰ 

Accordingly, the Court should affirm the Attorney General’s authority to enforce Title II.

4. CONCLUSION

For the above reasons, the District’s motion for summary judgment should be denied.

DATED:  October 18, 2019                    Respectfully submitted,