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Cave v. East Meadow Union Free School Dist.

March 19, 2007

JOHN CAVE AND NANCY CAVE AS INDIVIDUALS, PARENTS, LEGAL GUARDIANS AND GUARDIANS AD LIDEM OF MEMORANDUM 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.



The opinion of the court was delivered by: Spatt, District J.

DECISION AND ORDER

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 ()."

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.*fn1

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 effects of his disability. In addition, Simba is also an independent life tool which limits the effect of John, Jr.'s disability.

John, Jr. is in a special education program. Mrs. Cave meets with the Committee on Special Education ("CSE") at least once a year. John, Jr. has an individual education plan ("IEP") in which accommodations are provided by the school "in order to help limit the effects of the disability in an educational setting." (Tr. at 158). Mrs. Cave complains that the School District is not always in compliance with the IEP. In June 2005, she filed a formal complaint against the School District and detailed certain IEP violations, such as films shown without captioning; the failure to procure a substitute for the sick interpreter; and the FM system not working. Because the sign interpreter was not present, John, Jr. failed a midterm, although he was given a make-up exam with the interpreter present. Mrs. Cave described the services supplied to John, Jr. by the School District, as follows:

Q: Can you tell us what services are involved in his IEP plan?

A: John has a full-time, one-on-one sign language interpreter. He has an FM system that he uses in his class when it's not broken. And he is allowed extra time on tests. He is also allowed to take his tests with his resource room teacher in a separate location so that if he needs a break or he needs clarification, because he still has a detriment in vocabulary, he can get all of that. He is supposed to have captioning. If any videos or films are shown in class, they must be captioned. Those are the basics.

Q: You said John has an interpreter at school?

A: Yes.

Q: Is that interpreter with him at all times?

A: No.

Q: When is that interpreter with him?

A: The interpreter is with him for all of his classes. He is not with him in the hallways. He is not with him in the gym locker room or at his locker before and after school.

Q: How about the cafeteria?

A: Not in the cafeteria.

Q: How about in his resource room?

A: No. They -- sometimes he has been there but not all the time, no.

THE COURT: When you say "an interpreter," there is a person who stays with him in the classroom?

THE WITNESS: He meets him at every class.

THE COURT: Listen to my questions, they are specific and precise. Do you mean he has somebody with him in the classroom?

THE WITNESS: Yes, sir.

THE COURT: Where does this person stay, next to him?

THE WITNESS: I think it depends on the class and the teacher whether he is next to him or next to the teacher so that John can see him better.

THE COURT: How does the person communicate?

THE WITNESS: He uses sign language.

THE COURT: That's in every class?

THE WITNESS: It's supposed to be in every class.

THE COURT: Who pays for this person?

THE WITNESS: The school district, sir.

THE COURT: How long has this person been provided?

THE WITNESS: John has had a sign language interpreter since he was in second grade.

Q: Did that change when he got his implants?

A: No.

Q: So he continues to have a sign language interpreter? A Yes.

Tr. at 158, 180-181.

In May 2005, Mrs. Cave contacted the school regarding the admission of John, Jr.'s service dog in the school. At that time, John, Jr. was a student in the middle school. She spoke to Linda Carter, the former middle school principal. Ms. Carter said that the dog was not allowed in the school. Mrs. Cave also called Dr. Robert Dillon, the Superintendent of the School District. He told her there was no policy regarding service dogs. When she pressed the issue, he hung up.

When Mrs. Cave found out that John, Jr. was going to be matched with Simba, she made an appointment with the new high school principal, Timothy Voels. Apparently, Mr. Voels called the school district office and found out that the dog was not permitted. In the meantime, Mrs. Cave and John, Jr. went to Massachusetts on several occasions to train and test with Simba, who was given to John, Jr. Simba stays at their home. He is very obedient and was taken to restaurants, parks, malls, the library and church and was never denied access to any public place except the high school. The Court notes that Simba was in court on a number of days and was very quiet.

As to John, Jr.'s present condition, Mrs. Cave testified that she has to yell for him to hear and they learned sign language, which they use when not using the processor.

Mrs. Cave described several incidents that occurred on January 3, 2007. On that day, she took John, Jr. and Simba to Clarke High School. They entered the school and encountered principal Voels and assistant principal Darryl Strabuk on the second floor. According to Mrs. Cave, the two men were very aggressive and she felt threatened. Mr. Voels told them that the dog was not allowed and to take the dog out. Mr. Voels called the police who questioned her. By that time it was 8:00 a.m. and she had to go to work and she and John, Jr. and Simba left. John, Jr. had no school that day.

After that incident she went to the high school every day for several weeks with John, Jr. and three times with Simba. She actually brought Simba into the math class where Mr. Paul Ring was the teacher. Mr. Ring told her he has very bad dog allergies, but he allowed Simba to lay down by John, Jr.'s desk. After that Simba was denied access to the high school.

Mrs. Cave complains that because Simba is not allowed to go to school with John, Jr. he doesn't do as well at home as he used to and he needs to continually train Simba.

On cross-examination, Mrs. Cave was asked what exactly does Simba do for John, Jr. She responded that "He alerts John to sounds that he doesn't always hear. He limits the effect of John's disability, sounds like a doorbell, a stove timer or a cell phone, an ambulance or a train or a car coming." (Tr. at 202).

In particular, Mrs. Cave described Simba's role in John, Jr.'s life: Q Let's talk about Simba.

What exactly is Simba for John?

A: Simba is an independent life tool used to limit the effects of John's disability, to allow him to continue to be more and more independent as he continues to grow and head toward a life as an adult, a productive adult in a hearing society.

Q: So Simba doesn't help John learn his school work?

A: Well, I wish he could, because I sure can't do it anymore. Q Did you ever suggest that Simba would ever help him learn at school?

A: Never.

Q: Did you ever ask that Simba be used in a CSEA [sic] meeting regarding his education?

A: No.

Tr. at 275-276. However, Mrs. Cave conceded that Simba will not replace the interpreter, the FM transmitter system, the extra time given to John, Jr. for his tests or the daily resource room period with special teacher Faith Pryhuber. Significantly, Mrs. Cave also stated that John, Jr. is a "fully mainstreamed student" who has "a regular everything except for the resource room." (Tr. at 212).

Again, on cross-examination, Mrs. Cave conceded that the School District has made special accommodations for John, Jr.:

Q: And John has a sign language interpreter.

A: Yes.

Q: And that sign interpreter is different than his note taker; is that correct?

A: Yes.

Q: And in each of his classes he has the sign person and someone else who takes notes for him; is that correct?

A: That's correct.

Q: There is one assigned to take notes?

A: Yes.

Q: And someone is assigned to sign for him?

A: Yes.

Q: And that is all part of his IEP; is that correct?

A: Yes.

Q: Did you participate in developing the IEP?

A: Yes.

Q: You went to the meetings?

A: All of them.

Q: Were there limitations placed upon the interpreter as to when he was to be present with John?

A: I don't understand the question.

Q: Well, did you ask -- isn't it a fact that you asked that the interpreter not be with John in the halls and at lunch?

A: Yes.

Q: Okay. So the school offered to have the interpreter with him the whole time he's in the building?

A: No, they did not. They did not offer that at all.

Q: Well, you specifically asked that he not be there in the lunch and at hallways [sic]?

A: Yes.

Q: In fact, he gets to sit right in front of the teacher, doesn't he?

A: Yes -- well, no, not necessarily. He's in the front row. Doesn't mean that he's in front of the teacher.

Tr. at 252-253.

Melissa P. Resnick is 42 years of age and has been without sight since birth. She has had five service dogs. She has used service dogs starting in public school and has had no problems with the dog in the classroom; no problem with allergies; and no objection to her dogs. Ms. Resnick bonds with her dog on a seven-day, 24 hours basis and stated that it was very important for the dog's training to do so. If not, the dog will not respond as readily and can develop bad habits.

On January 21st or January 22nd of this year, Ms. Resnick was present at the Merrick Library at a Federation of the Blind meeting where Superintendent Dillon addressed the meeting. He spoke about this case and said he would allow blind students to use their canes and allow them to use guide dogs in school.

The Court notes that Ms. Resnick had a dog in school to assist her as a blind person when she was 17 years old and a senior in high school. Ms. Resnick does not know how many weeks would be required to train a hearing dog.

John Cave, Jr. testified by way of two sign language interpreters. He has had Simba for two months. He has trained with Simba in Massachusetts for one week and continued the training at home. John, Jr. keeps working with him at home to alert him to sounds. He's doing okay with Simba at home but Simba is doing things he shouldn't do. According to John, Jr. he is barking when he is not supposed to be doing so, because he hasn't gone to school with him. It is important to train Simba on a regular basis. Simba has alerted John, Jr. to the sound of a train. John, Jr. is trying to alert Simba to new sounds. He is doing fine in that regard.

John, Jr. testified that he feels more confident in public with Simba and that Simba helps him. With regard to the school situation, John, Jr. feels angry and very upset and wants to bring Simba to school. He feels that his training with Simba, without the school hours, is being destroyed.

On cross-examination, John, Jr. stated that, at age 14, like other teenagers, he does not like school, although he likes gym and plays dodge ball. In gym he plays with the other students and he talks to them and they talk to him. He also talks to his gym teachers. With his cochlear implants he is able to hear some of what the attorney is saying. The school provides sign interpreters for him in gym and all the other classes. In gym, while John, Jr. is playing dodge ball, Simba would be placed in a collapsible crate. He also likes math. He has no interpreter in his resource class with Ms. Pryhuber. However, he has a lot of "misunderstandings." He took a midterm in the resource room without an interpreter. He heard a cell phone ring, without a dog alerting him, and he carried on a conversation on the cell phone.

In addition to the sign interpreter and the FM transmitter, John, Jr. has special seating in the front row in all his classes, but he still doesn't hear all the words the teachers say. He also has a note taker and receives notes from the teacher in biology. He hears the class bell ring because they turn up the volume.

John, Jr. works with Simba at home to train him and he has taught him new sounds even though he is not with him in school. Simba has learned such sounds as a train horn, a doorbell ringing, a cell phone ringing, the sounds of a car, John Jr.'s name, emergency ...


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