Cave v. East Meadow Union Free School Dist.

480 F.Supp.2d 610

John CAVE and Nancy Cave as individuals, parents, legal guardians and guardians ad lidem of John Cave Jr. and John Cave Jr., Plaintiffs,

v.

EAST MEADOW UNION FREE SCHOOL DISTRICT, W. Tresper Clarke High School, Robert R. Dillon as administration of The East Meadow Union Free School District and W. Tresper Clare High School and Robert R. Dillon individually and personally, Joseph Barbera as administration of The East Meadow Union Free School District and W. Tresper Clare High School and Joseph Barbera individually and personally, Leon J. Campo as administration of The East Meadow Union Free School District and W. Tresper Clare High School and Leon J. Campo individually and personally, Timothy Voels as administration of The East Meadow Union Free School District and W. Tresper Clare High School and Timothy Voels individually and personally, Deborah Coates as President of the Board of Education of East Meadow School District and W. Tresper Clarke High School and Deborah Coates individually and Personally, Brian O'Flaherty as Vice President of the Board of Education of East Meadow School District and W. Tresper Clarke High School and Brian O'Flaherty individually and Personally, Debra Kirsh, as Trustee of the Board of Education of East Meadow Union Free School District and W. Tresper Clarke High School and Debra Kirsh individually and Personally, Judy Shiechel, as Trustee of the Board of Education of East Meadow Union Free School District and W. Tresper Clarke High School and Judy Shiechel individually and Personally, Walter Skinner, as Trustee of the Board of Education of East Meadow Union Free School District and W. Tresper Clarke High School and Walter Skinner individually and Personally, Barry Rubinstein, as Trustee of the Board of Education of East Meadow Union Free School District and W. Tresper Clarke High School and Barry Rubinstein individually and Personally, Joseph Parisi, as TRUSTEE of the

Board of Education of East Meadow Union Free School District and W. Tresper Clarke High School and Joseph Parisi individually and Personally, Geraldine Doddato as Assistant Principal and administration of The East Meadow Union Free School District and W. Tresper Clare High School and Geraldine Doddato individually and personally, Darryl Strabuk as Assistant Principal and administration of The East Meadow School District and W. Tresper Clare High School and Darryl Strabuk individually and personally, Patrice Dobies as an employee, agent and servant of East Meadow Union Free School District and W. Tresper Clarke High School and Patrice Dobies individually and Personally and John Campo as an employee, agent and servant of East Meadow School District and W. Tresper Clarke High School and John Campo individually and Personally, Defendants.

No. 07 CV 0542(ADS)(MLO).

United States District Court, E.D. New York.

March 19, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul J. Margiotta, Lindenhurst, NY, for the Plaintiffs.

Jaspan, Schlesinger & Hoffman, LLP, by Stephen R. Schlesinger, Stanley A. Camhi, Carol A. Melnick, of Counsel, Garden City, NY, for the Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, Senior District Judge.

The facts in this case are relatively uncomplicated. This case is about a hearing impaired boy in high school whose family wants him to bring into school and into his classes a dog known as a service dog to assist him in his endeavors and to help train the dog. The school declined to allow the dog into the school on the grounds that the young man is being satisfactorily accommodated already and that the dog would cause problems for the student himself and for other students and teachers and would cause disruptions. The family has come into federal court seeking a preliminary injunction "constraining and enjoining defendants from preventing entry to the W. Tresper Clarke High School ... to John Case, Jr. and his hearing dog Simba, or interfering with John Cave, Jr.'s use of any school facility while accompanied by his hearing dog Simba."

Based on this straight-forward factual background there has been a four and a half day hearing.

John Cave, Jr. ("John, Jr.") is a fourteen year old boy currently in the ninth grade at W. Tresper Clarke High School ("Clarke High School") in the East Meadow Union Free School District (the "School District"). John, Jr. is hearing impaired. John Cave and Nancy Cave, his parents, and John, Jr. (collectively, the "plaintiffs") commenced this action against the School District, several officials of the School District, and numerous administrators and employees of Clarke High School (collectively, the "defendants") alleging that the defendants violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq, and Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, and several New York State statutes by refusing to permit John, Jr. to bring his service dog Simba to school with him.

Presently before the Court is the plaintiffs' motion, brought by order to show cause, for a preliminary injunction enjoining the defendants from preventing John, Jr. from entering Clarke High School or any other school facility while accompanied by his service dog. The plaintiffs argue that they are entitled to a preliminary injunction because John, Jr. has an absolute right under federal and state laws to have his service dog accompany him to school. In response, the defendants contend that John, Jr. currently participates fully and successfully in his education without the service dog; that the School District has already furnished reasonable accommodations to John, Jr.'s hearing impediment; that the plaintiffs did not seek to obtain permission to bring the dog to school through the proper administrative channels; and that any benefit that John, Jr. will receive from having his service dog with him at school is outweighed by the potential health risks to dog-allergic and asthmatic students and teachers, the administrative burden of rearranging John, Jr.'s schedule, and the detriment to John, Jr.'s overall education if permitting him to bring the dog to school necessitates his being removed from his "mainstreamed" program.

The complaint alleges six causes of action. All of the causes are based on the Federal Americans with Disabilities Act, the Rehabilitation Act, and the following New York State statutes: the New York State Human Rights Law, New York Civil Rights Law and New York Education Law. All of these causes of action are based on John, Jr. and his service dog being wrongfully and illegally denied access to the Clarke High School.

I. THE HEARING

The following facts are taken from the material portions of the four and a half-day evidentiary hearing conducted by this Court between February 14 to February 22, 2007.

A. The Plaintiffs' Case

Jennifer Ledbetter is an audiologist. She is employed by Dr. Saul Modlin and she tests hearing. John, Jr. is a patient of Dr. Modlin and Ms. Ledbetter has tested his hearing for five years. John, Jr. has a profound sensory neural hearing loss. He is deaf, meaning without amplification, he has no hearing ability. However, with his cochlear implants he does have some usable hearing. A cochlear implant is an electronic device which is surgically implanted into the patient's cochlear, which is the organ for hearing. According to Ms. Ledbetter, even with the cochlear implants, John, Jr. is not a "hearing person."

On the morning of February 14, 2007, Ms. Ledbetter examined John, Jr., at Dr. Modlin's office. Without his implants, he has a "profound hearing loss," namely he is completely deaf. With his implants, his threshold ranged from twenty-five to forty decibels, which is a "mild hearing loss." Wearing his implants, John, Jr.'s "speech deficit score" was approximately sixty-eight percent with no background noise. When background noise was introduced, John, Jr.'s score fell to sixty percent.

An audiogram taken on August 18, 2005 was admitted in evidence (Dft. Ex. A). Reading that audiogram, John, Jr. falls within the normal range of hearing with the use of the implants. Using both ears, John, Jr.'s "speech audiometry" score ranged from ninety-two percent under "quiet" test circumstances, and sixty percent with "noise (+ 5)."

Also, outside of the test booth, he would have a hearing loss of forty percent. So that the maximum John, Jr. could hear is sixty percent.

Ms. Ledbetter also explained what is an FM transmitter, as follows:

Q What is an FM transmitter?

A It's a microphone and receiver that is designed to cut down on the signal-to-noise ratio when you are presenting speech in a room.

Q And how does it work; do you know?

A Generally, it's one for a teacher and student. The teacher wears the microphone so her voice or his voice goes directly into the microphone. It's sent by FM transmission to the wearer, usually a student, who then picks it up by some type of transducer in their ear or on a microphone they are wearing.

Q So the teacher in a classroom would typically have a microphone by their mouth?

A Correct.

Q And the sound being heard would typically be heard by the person at the other end of the FM transmitter as if the sound is right there, correct?

A It cuts out the background noise, yes.

Q Makes it easier to hear if there is other background noise?

A Yes.

^*Tr. at 65-66.

Nancy Cave is the mother of John, Jr. His deafness occurred when he was ten months old. He was diagnosed to be deaf at age 3. According to Mrs. Cave, John, Jr. is profoundly deaf in his right ear and also has a severe to profound loss in his left ear. Without cochlear implants he is profoundly deaf in both ears. In her words, John has a "natural silent world." As to the cochlear implants, they are "an independent life tool which limits the effect of John's disability" (Tr. at 154). Also, the FM transmitter system is another tool to limit the...