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

The undisputed facts establish that D.P. was capable of being, and indeed was, her service dog’s handler in school: the dog was under her control and housebroken, and the District was not responsible for, and never provided, “care or supervision” of the dog.  See 28 C.F.R. § 35.136.  D.P. therefore had a right under the Americans with Disabilities Act (ADA) to use her service dog in school.  When the District conditioned her exercise of that right on D.P.’s parent providing an additional handler for the dog, the District violated the ADA.

The District argues in opposition that D.P. is simply too disabled to handle her own service dog—that, because of her disabilities, she could not control her service dog and needed too much prompting to issue commands to the dog.  The District is wrong on both the law and the facts.  The governing regulation and this Court’s Order do not support the District’s definitions of “control” or “supervision”—definitions that would exclude large categories of people from using service dogs based solely on disability.  Such a result cannot be squared with the text or purpose of the ADA.  The District’s continued reliance on third-party conclusory statements that D.P. could not handle her dog is equally flawed and did not obviate the District’s obligation to examine the actual facts, which show that D.P. was the handler of her dog in school.  The Court should thus grant the United States’ motion for summary judgment. 

1. D.P. WAS CAPABLE OF HANDLING HER SERVICE DOG IN SCHOOL

Whether through tethering, hand gestures, or other means, D.P.’s service dog was under her control in school.  The Court should reject the District’s efforts to impose additional and unnecessary conditions on D.P.’s service animal use.

1. D.P.’s Service Dog Remained Under Her Control and the District’s Attempt to Impose Additional Handler Requirements Should Be Rejected

 In denying the District’s prior summary judgment motion, this Court rejected the District’s attempt to deny any responsibility as to D.P.’s use of her service dog.  Order 12-13, ECF No. 28.  In so doing, the Court looked to Title II’s service animal regulation, 28 C.F.R. § 35.136, to ascertain the parameters of the District’s responsibilities under the ADA.  Order 10.  That regulation requires public entities to generally modify policies, practices, or procedures to permit the use of a service dog by an individual with a disability.  28 C.F.R. § 35.136(a).  A service dog must be under the control of its handler, which can be established by tethering, issuing commands, or other effective means, and the public entity is not responsible for the service dog’s care or supervision.  Id. at§ 35.136(d)-(e).  A public entity may restrict access to an individual’s service dog if (1) the dog is out of control and the dog’s handler does not take effective action to control it; or (2) the dog is not housebroken.  Id. at§ 35.136(b). 
The District admits that D.P.’s service dog was never out of control and was housebroken.  Def. Opp. 2 n.1, ECF No. 78-4; Def. Opp. SMF ¶ 11, ECF No. 78-3.  Thus, neither of the permitted bases for restricting access was triggered.  Forced to concede this point, the District now asserts that the dog being under control is “beside the point,” and instead argues that D.P. could not be her dog’s handler because she purportedly needed classroom staff to frequently issue commands to the dog and/or required too much prompting to issue commands herself.  Def. Opp. 2 & n.1.  The District further argues that the United States has improperly limited the issue of control to whether classroom staff were required to issue commands to the dog “to keep it under control.”  Def. Opp. 2.  The District is wrong on all counts.  Its arguments ignore the actual facts on the record, mischaracterize the United States’ argument on summary judgment, and fundamentally misconstrue this Court’s prior Order. 
The Court previously held that this case turns on whether D.P.’s service dog could be considered under her “control,” as required by § 35.136, or whether the District was required to control and thus “handle” the dog for her.  Order 12-13.  The Court explained that if D.P. was tethered to her service dog and the only assistance she needed was with untethering and prompting her to issue commands, then “D.P. can be considered to be in control of [the dog].”  Id.  “On the other hand, if D.P. requires school district personnel to actually issue commands to [the dog], as opposed to occasionally reminding her to do so, then D.P. cannot be considered in control of her dog.”  Id.Answering these questions requires consideration of and reliance on actual facts and not, as the District would proffer, generalizations and speculation about both D.P. and her service dog.

Critical among those facts is how D.P.’s service dog was trained for and to assist her.  In short, this dog was trained to follow and serve D.P. alone.  See Def. Opp. SMF ¶¶ 9-10; Pl. MSJ 5-6, 9-10, ECF No. 69-1.  As the dog’s trainer explained: “[The service dog] quickly understood that her one imperative in life was to serve and follow D.P . . . [s]he would not have done that for anyone else.”  Denyer Decl. ¶ 6, ECF No. 69-7; see also Horozko Decl. ¶ 7, ECF No. 69-9.  What is required to handle or control D.P.’s service dog must be analyzed against the undisputed facts of this dog’s particularized training to work with D.P.

Indeed, the dog’s training was such that few to no commands, by D.P. or anyone, were needed in school—for any purpose, control or otherwise.  See Pl. MSJ 9-10, 15-18; Pl. Opp. 4, ECF No. 79.  And classroom staff testified that, in five years, they never issued commands to the dog.  See Pl. MSJ 18 (citing testimony of classroom staff).  Moreover, as this Court previously found, “control” can be established by tethering alone.  Order 11-12.  The dog was tethered to D.P. “much of the time,” as the District concedes, Def. Opp. 16, and could have been tethered throughout the school day.   The District thus fails to show a triable issue as to whether D.P. could control and handle her dog.

Perhaps recognizing as much, the District attempts to shift the Court’s focus away from control and the Court’s prior Order to now argue that even if D.P. can keep her dog under control, she cannot be the handler unless she can “direct the dog to perform its duties correctly.”  Def. Opp. 3.  The regulation contains no such requirement, and any such standard would make little sense in this context, where the dog has been trained to respond to D.P. and related environmental cues without the need for specific direction.  Indeed, as discussed below, the regulation contemplates that an individual with a disability remains his dog’s handler whether “directing” it or not.  See 28 C.F.R. §§ 35.104, 35.136; Part I.B infra.  And practically speaking, a hospital patient remains her dog’s handler even while asleep, so long as the dog is under control; the hospital does not need to handle the dog while the patient sleeps.  Cf. 28 C.F.R. pt. 35, app. A § 35.136 at 629 (2018).

Also, no federal court case has ever interpreted the Title II regulation to impose such a requirement on the handler, including the only case the District relies upon.  See Def. Opp. 3-4; Riley v. Sch. Admin. Unit #23, No. 15-CV-152-SM, 2015 WL 9806795, at *9-10 (D.N.H. Dec. 22, 2015).  While Riley cites a dictionary definition that includes “directing” as one possible meaning for “supervision,” the court decided the case on the facts, which were markedly different from the facts here.  Id. at *10-11.  In Riley, the student could not be tethered to his service dog and could not issue any needed commands to the dog.  Id. at *13.  The student required school district staff to perform all handling tasks for him rather than assisting or reminding him to do so.  Id.at *10.  Against these facts, the court concluded that “a court would likely find that the plaintiffs’ request mandates the [d]istrict to ‘supervise’ [the service dog] during the school day, in violation of § 35.136(e).”  Id. at *13.

Here, by contrast, the District admits that D.P. was tethered to her service dog in school and that she could, and did, issue nonverbal commands to her dog.  See Def. Opp. SMF ¶¶ 14- 15.  When staff simply focused on watching and directing D.P., the dog followed.  Pl. MSJ 4.  Thus, even under the Riley court’s interpretation, D.P. could handle her dog and the District was not responsible for “supervision” of the dog under § 35.136.

2. The District’s Argument that D.P. Was Too Disabled to Handle Her Service Dog Is Not Supported by the Facts or the Law

The District devotes much of its opposition brief to arguing that D.P. is too disabled to be the handler of her service dog.  Def. Opp. 5-11.  This argument reflects a basic misunderstanding of what a service dog is, the requirements under § 35.136, and this Court’s Order.  The District’s misunderstanding of the law is compounded by its seeming disregard for D.P.’s actual abilities, her service dog’s training, and how D.P and her service dog work together as a team.   For example, the District asserts that D.P.’s purported “lack of social awareness rendered her incapable of acting as her service dog’s handler”; that D.P. cannot be the handler of her service dog because she cannot speak; and that D.P.’s alleged severe intellectual disability, by its definition, renders her incapable of handling her service dog.  Def. Opp. 5-7, 9-11, 15 n.5.    These contentions have no basis in the law, and would exclude large categories of people, of all ages, from using a service dog based solely on their disability or impairment, unless they employed a separate handler.  Such a standard runs counter to the ADA.

The regulatory definition of “service animal,” 28 C.F.R. § 35.104, explicitly defines the work and tasks performed by a service dog to include “assisting an individual during a seizure” and “preventing or interrupting impulsive or destructive behaviors.”  Id.  Most, if not all, people cannot issue commands or direct their dog during a seizure, nor does it make logical sense for someone to direct a dog to prevent or interrupt their own impulsive or destructive behaviors—just as D.P. did not direct her dog to stop her from eloping.  There is nothing in the regulation or its accompanying guidance to even suggest that individuals using service dogs for these tasks must employ a separate handler.  To the contrary, as both this Court and the District have recognized, the regulation contemplates that the person with a disability using the service dog will typically be the dog’s handler under the ADA.  See MSJ Hr’g Tr. 48:11-13, ECF No. 25; Def. MSJ 3, ECF No. 10-5.

The District’s discussion of dysregulation similarly suggests a standard that would exclude people with conditions such as diabetes, epilepsy, and heart conditions—all of which may involve at least some periods of dysregulation—from handling their own service dog.  This was confirmed by the District’s retained expert, Dr. Cynthia Devore—a pediatrician who, by her own admission, has no expertise on service dogs.   In her opinion, no one (aside from “probably Navy seals”) can control a dog while dysregulated, such as during a seizure, heart attack, or severe diabetic episode.  Devore Dep. 76:5-12, 77:9-78:24 (attached as appendix).  Again, the District’s argument about who can be and what is required of a handler simply cannot be reconciled with the regulation.

Notably, in the few anecdotes that the District provides of D.P. experiencing dysregulation, her dog was always under control.  See Def. Opp. 7-9.  The District primarily focuses on two purported “meltdowns” that allegedly occurred during Dr. Devore’s observation of D.P. with her new dog in the Hilton Central School District.  See id.  On both occasions, no one had to issue commands to the dog, and the dog was always under control.   Id.; see also Def. Opp. 2 n.1.  D.P.’s disabilities did not prevent her from controlling or handling her dog. 

3. District Staff Needed Only to Prompt and Direct D.P., Not Her Service Dog

The District argues that because D.P. is non-speaking and the additional handler sometimes issued a few directional commands to the dog, “[D.P.] could not have been issuing these verbal commands.”   Def. Opp. 15 n.5.  But the additional handler testified that, even though she sometimes gave commands to the dog, she could have instead prompted D.P. to do so or led D.P. where to go and the dog would follow.  Horozko Decl. ¶¶ 11-12, ECF No. 69-9; see also Romano Dep. 32:6-34:10, ECF No. 69-21.  The commands she issued to the dog were not necessary.

Indeed, the District’s own witnesses agreed that either D.P. used various nonverbal means to cue her dog when prompted or the dog just followed D.P. without needing a command.  See Pl. MSJ 8-9; Def. Opp. SMF ¶¶ 4, 16; Def. Opp. 7, 12-15.  D.P.’s former 1:1 aide, for example, testified that D.P. would grab the dog’s harness after being told “let’s go” about 50% of the time and, the other half of the time, she would do it with some additional prompting as long as she was regulated.  Def. Opp. 13-14.  The aide further testified that, when unregulated, D.P. would not respond to prompts, but that “D.P. does what D.P. wants to do and the dog just goes.”  Id. 14.  Thus, no commands were necessary.

Moreover, it is undisputed that D.P. is the only person who was with the dog at all times throughout the school day; that the dog was never a problem when the additional handler was out of the room; and that classroom staff never had to issue commands to the dog in the five years in question.  Pl. MSJ 6-7, 16, 18, 22.  It is also undisputed that the additional handler spent her days sitting in the back of the class away from the service dog and was on her phone or computer 90% to 100% of the time.  Pl. MSJ 10.  The undisputed facts thus show that D.P.’s dog was under her control in school, even when untethered, and that no one had to issue commands to the dog for D.P.  And even when District staff prompted D.P. to get her dog, such prompting generally occurred during transitions between activities and took seconds to do.  See Pl. Opp. 4-5.

Finally, any prompting that D.P. needed related to her dog must be viewed in the context of the prompting she and her classmates required as to all other tasks in the classroom.  See 28 C.F.R. pt. 35 app. A (“[T]he appropriateness of an exclusion can be assessed by reviewing how a public entity addresses comparable situations that do not involve a service animal.”).  It is undisputed that classroom staff frequently prompted D.P. and her classmates on a range of tasks throughout the school day, such as prompting a student multiple times to say hello or to board the bus.  See Def. Opp. 11; Pl. SMF ¶ 16, ECF No. 69-2; BOCES 30(b)(6) Dep. (Martorana) 214:8-12, ECF No. 79-6; Romano Dep. 32:21-25, ECF No. 69-21.  Given this, to the extent that D.P. needed multiple prompts to, say, get her dog and get ready to go home, it is akin to, and no more effort than, prompting her classmate multiple times to get ready to go home and board the bus.  Indeed, prompting students in D.P.’s classroom was a regular and expected occurrence; prompting D.P., as needed, to issue commands to her dog should not be treated differently and worse.  Moreover, any prompting that D.P. needed related to her dog was in fact “occasional” compared to how much prompting staff provided to D.P. and her classmates for nearly everything else.  Pl. Opp. 4-5.

Thus, an examination of the facts of the case against a straightforward reading of the service animal regulation shows that there is no genuine issue of material fact as to whether D.P. could handle her service dog in school—she was already doing it.    

2. THE DISTRICT CANNOT SELECTIVELY RELY ON OUTDATED, IRRELEVANT, AND CONTRADICTORY STATEMENTS OF OTHERS

In the alternative, the District argues that, even if D.P. could handle her service dog, it should not be held liable because it allegedly relied on statements by others that D.P. could not do so.  Def. Opp. 19-24.  But the District cannot selectively rely on such generalizations and speculation to justify its additional-handler requirement when the record is replete with actual facts that show D.P. did not need an additional handler. 

First, the District asserts that it “should hardly be faulted for” its reliance on certain assertions by D.P.’s mother when D.P. was in kindergarten, even though D.P. was a student in the District through fourth grade.  Def. Opp. 19-22.  These statements are stale and taken out of context, and the United States already disputed them in its response to the District’s Rule 56 statement of facts.  See Pl. Opp. SMF ¶¶ 12-23, ECF No. 79-1.  As explained there, H.P. made these statements when requesting special education services under a different law with different requirements than the ADA.  Id.  And in those same emails, H.P. said that the dog was tethered to D.P. throughout the school day and that D.P. held onto the dog’s harness and walked independently.  Id.  But the District chose not to rely on those statements showing that D.P. was controlling her service dog, or on H.P.’s requests in 2015 and later for the District to recognize D.P. as the handler of her service dog.   Id. at ¶ 15.

The District next argues that it relied on “information” from classroom staff “indicating that [D.P.] never attained the skills necessary to handle her service dog.”  Def. Opp. 22-23.  The only handling skill cited is the ability to issue commands to the dog, id., which is not a required skill under the law and was not needed in this case as a matter of fact.  The District cites two declarations crafted by the District for summary judgment—one of which primarily consists of inadmissible hearsay, id. at 22 (citing Martorana Decl. ¶ 21), and the other is contradicted by the declarant’s own deposition testimony and the firsthand factual observations of other classroom staff.  Compare id. at 22-23 (citing Carroll Decl.), with Carroll Dep. 89:10-19, 91:7-11, ECF No. 69-17 (testifying that D.P. pulled up on the harness to get the dog to go); Pl. SMF ¶ 15 (same).

Finally, the District raises state administrative findings, which were made under an entirely different law and standard.  Def. Opp. 23-24.  As explained in the United States’ opposition, these SED findings are irrelevant.  See Pl. Opp. 5-6; Pl. Opp. SMF ¶ 54.  Thus, none of these arguments relieves the District of liability for its ADA violations.

3. CONCLUSION

As a matter of law, D.P. was capable of handling her service dog in school.  Therefore, the District’s additional-handler requirement violated Title II of the ADA, and the Court should grant the United States’ motion for summary judgment.