Number range CHAPTERKERRY ALAN SCANLON, Deputy Assistant

Attorney General for Civil Rights

JOHN L. WODATCH, Chief,

JOAN A. MAGAGNA, Deputy Chief,

MARY LOU MOBLEY, Attorney

Disability Rights Section

Civil Rights Division

United States Department of Justice

P.O. Box 66738

Washington, DC 20035-6738

Tel: (202) 307-0663

CHARLES J. STEVENS

United States Attorney,

EDMUND F. BRENNAN,

Deputy Civil Chief,

650 Capitol Mall

Sacramento, CA 95814

Tel: (916) 554-2700

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

+------------------------------------+---+-----------------------------+
| SHERRY A. ORR as Guardian ad Litem |   | CIV-S-95-507 EJG PAN        |
| for JEREMY ORR, a Minor Child;     |   |                             |
| SHERRY A. ORR; and WILLIAM ORR,    |   |                             |
|                                    |   |                             |
| Plaintiffs,                        |   |                             |
|                                    |   |                             |
| v\.                                |   |                             |
|                                    |   |                             |
| KINDER CARE LEARNING CENTERS,      |   |                             |
| INC.,                              |   |                             |
+------------------------------------+---+-----------------------------+

UNITED STATES\' BRIEF AS [AMICUS CURIAE]{.underline}

IN SUPPORT OF PLAINTIFFS\' MOTION FOR PRELIMINARY

INJUNCTION AND REQUEST FOR ORAL ARGUMENT

**TABLE OF CONTENTS**

TABLE OF AUTHORITIES ii

I. FACTS 3

II\. ANALYSIS 7

> A. JEREMY ORR IS LIKELY TO PREVAIL ON HIS ADA CLAIMS. 8
>
> 1\. KinderCare\'s decision violates title III\'s\
> general prohibitions of discrimination and\
> denial of services on the basis of disability\
> and, more particularly, title III\'s requirement\
> to make reasonable modifications in policies, practices and procedures
> 8
>
> 2\. Jeremy Orr\'s continued participation in the KinderCare program
> does not create a fundamental alteration in the program. 12
>
> 3\. The presence of a personal care attendant for Jeremy does not
> create a fundamental alteration\
> in KinderCare\'s program. 18
>
> B. WILLIAM AND SHERRY ORR ARE LIKELY TO PREVAIL ON THEIR CLAIM OF
> DISCRIMINATION ON THE BASIS OF ASSOCIATION. 21
>
> C. THE BALANCE OF HARDSHIPS WEIGHS HEAVILY IN FAVOR OF PLAINTIFFS. 22
>
> 1\. Jeremy and his parents will suffer irreparable injury if expelled
> from KinderCare\'s after-\
> school program. 22
>
> 2\. KinderCare will not suffer irreparable injury if the Court enjoins
> it from expelling Jeremy. 24
>
> D. PUBLIC POLICY STRONGLY FAVORS GRANTING THE\
> INJUNCTION. 25
>
> E. THE OVERALL BALANCE FAVORS PLAINTIFFS. 27

III\. CONCLUSION 29

**TABLE OF AUTHORITIES**

**CASES**

[Anderson v. Little League Baseball, Inc.]{.underline},

794 F. Supp. 342 (D. Ariz. 1992) 25

[Bowles v. Seminole Rock & Sand Co.]{.underline},

325 U.S. 410 (1945) 2

[California v. American Stores Co.]{.underline},

872 F.2d 837 (9th Cir. 1989), [rev\'d on other grounds]{.underline},

495 U.S. 271 (1990) 27

[Caribbean Marine Services Co., Inc. v. Baldridge]{.underline},

844 F.2d 668 (9th Cir. 1988) 7, 25, 28

[Chevron, U.S.A., Inc. v. Natural Resources Defense
Council,]{.underline}

[Inc.]{.underline},

467 U.S. 837 (1984) 2

[Fiedler v. American Multi-Cinema, Inc.]{.underline},

871 F. Supp. 35 (D.D.C. 1994) 2

[Half Moon Bay Fishermans\' Marketing Ass\'n v. Carlucci]{.underline},

857 F.2d 505 (9th Cir. 1988) 7

[Lyng v. Payne]{.underline},

476 U.S. 926 (1986) 2

[Martin v. Occupational Safety and Health Review Comm\'n]{.underline},

499 U.S. 144 (1991) 2

[Northern Alaska Environmental Center v. Hodel]{.underline},

803 F.2d 466 (9th Cir. 1986) 7

[Petersen v. University of Wis. Bd. of Regents]{.underline},

818 F. Supp. 1276 (W.D. Wis. 1993) 2

[Staron v. McDonald\'s Corp.]{.underline},

1995 WL 14875 (2d Cir. April 4, 1995) 19, 21

[Stinson v. United States]{.underline},

113 S. Ct. 1913 (1993) 2

[The Fund for Animals, Inc. v. Lujan]{.underline},

962 F.2d 1391 (9th Cir. 1992) 7

[Thomas Jefferson Univ. v. Shalala]{.underline},

114 S. Ct. 2381 (1994) 2

[Udall v. Tallman]{.underline},

380 U.S. 1 (1965) 2

[United States v. Morvant]{.underline},

No. CIV-A-93-3251, 1995 WL 131093 (E.D. La. March 22,

1995\) 10

[United States v. Odessa Union Warehouse Co-op]{.underline},

833 F.2d 172 (9th Cir. 1987) 25, 28

**RULES**

28 C.F.R. pt. 36 2, 16

28 C.F.R. pt. 36, App. B 16-18

28 C.F.R. § 36.104 8

28 C.F.R. § 36.201(a) 8, 10

28 C.F.R. § 36.203(b) 17

28 C.F.R. § 36.203(c)(1) 17

28 C.F.R. § 36.205 8, 21

28 C.F.R. § 36.302 9, 10

28 C.F.R. § 36.306 18

28 C.F.R. § 36.501 24

**STATUTES**

20 U.S.C. § 1491a(c)(6) 27

42 U.S.C. § 12101(2) 8

42 U.S.C. § 12112(b)(4) 21

42 U.S.C. § 12181(7)(K) 8

42 U.S.C. §§ 12181-89 1

42 U.S.C. § 12182(a) 8, 10

42 U.S.C. § 12182(b)(1)(A)(i) 9

42 U.S.C. § 12182(b)(1)(C) 17

42 U.S.C. § 12182(b)(1)(E) 8, 21

42 U.S.C. § 12182(b)(2)(A)(ii) 9, 10

42 U.S.C. § 12186(b) 2

42 U.S.C. § 12188(a)(1) 24

42 U.S.C. § 12206(c)(3) 3

KERRY ALAN SCANLON, Deputy Assistant

Attorney General for Civil Rights

JOHN L. WODATCH, Chief,

JOAN A. MAGAGNA, Deputy Chief,

MARY LOU MOBLEY, Attorney

Disability Rights Section

Civil Rights Division

United States Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

CHARLES J. STEVENS

United States Attorney,

EDMUND F. BRENNAN,

Deputy Civil Chief,

650 Capitol Mall

Sacramento, CA 95814

Tel: (916) 554-2700

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

+------------------------------------+---+-----------------------------+
| SHERRY A. ORR as Guardian ad Litem |   | CIV-S-95-507 EJG PAN        |
| for JEREMY ORR, a Minor Child;     |   |                             |
| SHERRY A. ORR; and WILLIAM ORR,    |   | UNITED STATES\' BRIEF AS    |
|                                    |   | [AMICUS CURIAE]{.underline} |
| Plaintiffs,                        |   | IN SUPPORT OF PLAINTIFFS\'  |
|                                    |   | MOTION FOR                  |
| v\.                                |   |                             |
|                                    |   | PRELIMINARY INJUNCTION AND  |
| KINDER CARE LEARNING CENTERS,      |   | REQUEST FOR ORAL ARGUMENT   |
| INC.,                              |   |                             |
+------------------------------------+---+-----------------------------+

This case was filed by Jeremy Orr, a nine-year old child with a
disability, and his parents, against KinderCare Learning Centers, Inc.,
the owner and operator of an after-school child care program in Elk
Grove, California, in which Jeremy has been enrolled since September
1994. Plaintiffs allege that KinderCare\'s decision in February 1995 to
expel Jeremy constitutes discrimination on the basis of disability in
violation of title III of the Americans with Disabilities Act of 1990
(\"ADA\"), 42 U.S.C. §§ 12181-89.[^1] Plaintiffs\' motion for a
preliminary injunction is now before the Court, scheduled for hearing on
May 26, 1995. The United States requests that it be allowed to present
oral argument at that time.

As [amicus curiae]{.underline}, the United States urges the Court to
grant Plaintiffs\' motion to enjoin KinderCare from expelling Jeremy
from its after-school program. The principal legal issues presented by
this motion involve the meaning of title III and the Department of
Justice\'s implementing regulation. On both of these issues, the
Department of Justice\'s interpretation is entitled to substantial
deference.[^2]

As discussed below, Plaintiffs have demonstrated that they are
substantially likely to succeed on the merits of their ADA claims, that
they will suffer irreparable harm if Jeremy is expelled, that the harm
to Plaintiffs outweighs the minimal harm to KinderCare if the Court
orders KinderCare to retain Jeremy, and that public policy strongly
favors granting a preliminary injunction in favor of Plaintiffs.

**I. [FACTS]{.underline}**

Plaintiffs are Jeremy Orr and his parents, William and Sherry Orr. The
Orrs live in the Sacramento area, where William and Sherry both work
full-time. Complaint at ¶ 5; S. Orr Decl. at ¶ 1.[^3] The Orrs require
after-school care for Jeremy. Complaint at ¶ 5.

Jeremy is a nine-year old child who has been diagnosed with tuberous
sclerosis, a genetic disability that has resulted in mental retardation,
low vision, and mild seizures. S. Orr Decl. at ¶ 2. Jeremy needs
diapering, and, while he can walk and eat by himself, he benefits from
assistance with these and other activities. Wilcox Decl. at ¶¶ 3, 5.

He has attended public school from age 2-1/2 through an early
intervention program. Complaint at ¶ 7; S. Orr Decl. at ¶ 3. Jeremy now
attends a special education class at the Markofer Elementary School, a
mainstream public elementary school operated by the Sacramento Office of
Education. S. Orr at ¶ 3. He has been there since November 1993. Donough
Decl. at ¶¶ 1-2. The special education class meets weekdays 8:30 a.m. to
2:30 p.m. Complaint at ¶ 7. Jeremy\'s teacher, Jan Donough, believes
that he has shown significant improvement since November 1993 and that
he is a well-liked member of the school community. Donough Decl. at ¶¶
2, 3, 6. The Orrs have been pleased with his progress. Complaint at ¶ 7.
Jeremy has non-disabled \'student buddies\' with whom he eats and plays
during the lunch hour. Donough Decl. at ¶ 4. He is able to participate
in both structured and unstructured activities, enjoys interacting with
other children, and responds to staff members\' directions.
[Id.]{.underline} at ¶¶ 3, 4. He has participated in a whole range of
activities in his special education program, including swimming,
horseback riding, and shopping. [Id.]{.underline} at ¶ 5.

Jeremy needs after-school care for approximately three hours each school
day and all day during school vacations. Donough Decl. at ¶¶ 3, 7. He
began attending KinderCare\'s after-school program in Elk Grove,
California, on September 13, 1994. S. Orr Decl. at ¶ 7.

KinderCare is a publicly traded Delaware corporation that offers
full-time child care for preschoolers and after-school care for
school-age children at approximately 1200 centers in roughly 40 states.
Complaint at ¶ 4; Answer at ¶ 4; Mercado Decl. at ¶ 3; Opposition at
2-4. KinderCare is licensed by the California Department of Human
Services to provide day care services throughout California. Complaint
at ¶ 4. It provides age-specific group educational programs designed to
lead to social, physical, emotional, and intellectual growth. Mercado
Decl. at ¶¶ 6-7. These programs are built upon monthly topics and weekly
themes such as transportation, seasons, colors, numbers, pets, safety,
shapes, and sizes. [Id.]{.underline} at ¶ 6. There are group activities
such as music and fingerpainting as well as individual discovery areas.
[Id.]{.underline}

KinderCare states that it will enroll children with disabilities as long
as they can participate in group activities. Mercado Decl. at ¶ 11.
KinderCare evaluates each situation on a case-by-case basis.
[See]{.underline} KinderCare\'s form entitled, \"Physician\'s
Recommendation for Placement in Group Child Care,\" attached as Exhibit
A-4 to Plaintiff\'s Memorandum in Support of Motion for Preliminary
Injunction. KinderCare states that since its inception in 1969, it has
enrolled many children with disabilities including those with cancer,
asthma, cerebral palsy, cystic fibrosis, hemophilia, diabetes, and
epilepsy. Mercado Decl. at ¶ 10. KinderCare states that it routinely
provides diapering services for children with disabilities \--
presumably referring to children, like Jeremy, who are older than others
who customarily require those services. [See]{.underline} Muscari Decl.
at ¶¶ 10, 11; Opposition at 5. KinderCare states, however, that it does
not provide \"custodial care\" to children with disabilities, but it
fails to define that term, except to say that its program is
[not]{.underline} custodial care. [See]{.underline}, [e.g.]{.underline},
Tronick Decl. at ¶ 8.

The parties disagree over the degree to which Jeremy is capable of
interacting with other children and staff in the KinderCare program and
the degree to which he is benefitting from the program. KinderCare
personnel assert that Jeremy does not communicate with or interact with
the other children and further, that he is incapable of participating in
any of the regularly scheduled KinderCare group activities. Wilcox Decl.
at ¶¶ 4, 6, and 7; Hacha Decl. at ¶ 4. Even if these observations of
Jeremy\'s behavior in KinderCare are accurate, it appears that he is
able to participate in group activities if he is given some direction,
such as that which could be provided by a personal care attendant.
Jeremy\'s parents and his public school teacher state that with
motivation, Jeremy is capable of and, in fact, enjoys group activities
such as eating, playing, and otherwise interacting with other children
and adults. S. Orr Decl. at ¶ 3; Donough Decl. at ¶¶ 3-6. In fact,
Sherry Orr believes that Jeremy has enjoyed his time at KinderCare, has
been able to make friends easily, and has responded well to the program.
S. Orr. Decl. at ¶¶ 7, 13.

Some time after Jeremy\'s enrollment at KinderCare, his parents,
KinderCare, and Polly Caple, a service coordinator from a private,
non-profit State-funded agency (\"the Alta Center\"), began discussing
the possibility of having the Alta Center provide \-- free of charge \--
a personal care attendant for Jeremy\'s use while at KinderCare. S. Orr
Decl. at ¶ 11; Caple Decl. at ¶¶ 4-8.[^4] No aide was ever placed in
service to work with Jeremy. Answer at ¶ 13. The Orrs and KinderCare
disagree whether an aide would foster Jeremy\'s participation in
KinderCare\'s program. [Compare]{.underline} S. Orr Decl. at ¶¶ 19-20
[to]{.underline} Tronick Decl. at ¶ 6. The Alta Center continues to be
ready and willing to provide such an aide at no cost to KinderCare.
Caple Decl. at ¶ 8.

On February 15, 1995, KinderCare informed the Orrs in writing that it
was no longer willing to care for Jeremy, stating:

> . . . in order to meet Jeremy\'s needs, he requires more attention
> than is possible for us to offer in group care. In fact, you have
> asked that we provide a care giver solely for Jeremy, or a one to one
> ratio, so that Jeremy may participate in our program. Since the nature
> of our child care center is group care, where we can meet the needs of
> the children attending in a group setting, it is not possible to
> accommodate your request.

(Letter from Janice Tronick, Regional Manager of KinderCare, to Mr. and
Mrs. Orr, dated Feb. 15, 1995, attached to Memorandum of Points and
Authorities in Support of Plaintiffs\' Motion for Preliminary Injunction
(\"KinderCare Expulsion Letter\")). KinderCare\'s decision was made
despite the Alta Center\'s ongoing offer to pay for and provide a
personal care attendant for Jeremy\'s use while at KinderCare. Caple
Decl. at ¶¶ 6-8. Jeremy continues to attend the KinderCare program
pending a resolution of Plaintiff\'s Motion for Preliminary Injunction.
Opposition at 8.

**II. [ANALYSIS]{.underline}**

To obtain a preliminary injunction, Plaintiffs must demonstrate either
(1) a likelihood of success on the merits and a possibility of
irreparable injury, or (2) the existence of serious questions on the
merits and a balance of hardships tipping in its favor. [The Fund for
Animals, Inc. v. Lujan]{.underline}, 962 F.2d 1391, 1400 (9th Cir.
1992), [citing]{.underline} [Half Moon Bay Fishermans\' Marketing Ass\'n
v. Carlucci]{.underline}, 857 F.2d 505, 507 (9th Cir. 1988). These are
not distinct legal standards, but extremes of a single continuum.
[Id.]{.underline} In cases where the public interest is involved, the
district court must also examine whether the public interest favors the
plaintiff. [Id.]{.underline}, [citing]{.underline} [Caribbean Marine
Services Co., Inc. v. Baldridge]{.underline}, 844 F.2d 668, 674 (9th
Cir. 1988); [Northern Alaska Environmental Center v. Hodel]{.underline},
803 F.2d 466, 471 (9th Cir. 1986). Each of these factors is analyzed
below.[^5]

> **A. [JEREMY ORR IS LIKELY TO PREVAIL ON HIS ADA
> CLAIMS.]{.underline}**
>
> **1. KinderCare\'s decision violates title III\'s general prohibitions
> of discrimination and denial of services on the basis of disability
> and, more particularly, title III\'s requirement to make reasonable
> modifications in policies, practices and procedures.**

Title III\'s general prohibition of discrimination on the basis of
disability requires public accommodations to provide people with
disabilities the \"full and equal enjoyment of \[their\] goods and
services.\"[^6] Section 302(a) provides:

> General rule. No individual shall be discriminated against on the
> basis of disability in the [full and equal enjoyment]{.underline} of
> the goods, services, facilities, privileges, advantages, or
> accommodations of any place of public accommodation by any person who
> owns, leases (or leases to), or operates a place of public
> accommodation.

42 U.S.C. § 12182(a) (emphasis added); [see also]{.underline} 28 C.F.R.
§ 36.201(a). Discrimination under this general provision is defined to
include, [inter alia]{.underline}, a denial of an opportunity to
participate in or benefit from a public accommodation\'s goods and
services. 42 U.S.C. § 12182(b)(1)(A)(i). More specifically, title III
prohibits a failure to make reasonable modifications in policies,
practices, and procedures where necessary to ensure full and equal
enjoyment. 42 U.S.C. § 12182(b)(2)(A)(ii). This section defines
discrimination to include:

> a failure to make reasonable modifications in policies, practices, or
> procedures, when such modifications are necessary to afford such
> goods, services, facilities, privileges, advantages, or accommodations
> to individuals with disabilities, unless the entity can demonstrate
> that making such modifications would fundamentally alter the nature of
> such goods, services, facilities, privileges, advantages, or
> accommodations.

42 U.S.C. § 12182(b)(2)(A)(ii); [see also]{.underline} 28 C.F.R. §
36.302.[^7]

The reasonable modification requirement of section 302(b)(2)(A)(ii) is
not without limitation \-- modifications are not required if they would
*fundamentally alter* the nature of a public accommodation\'s goods or
services or would otherwise be *unreasonable* and they do not have to be
made if doing so would pose a *direct threat* to others.

Congress\' intent when passing the ADA was to \"bring individuals with
disabilities into the economic and social mainstream of American life.\"
S. Rep. No. 116, 101st Cong., 1st Sess., at 58 (1989) (Labor and Human
Resources). The fundamental alteration defense ensures that even in
pursuit of this goal, public accommodations will not have to make
fundamental changes to the nature of their goods or services. The
principles underlying the notion of \"fundamental alteration\" are,
simply put, that the alteration is not mandatory if it would require a
public accommodation to provide an altogether different kind of good or
service than it typically provides.[^8]

In addition to determining whether a modification fundamentally alters a
public accommodation\'s program, the Court must determine whether the
modifications are \"reasonable.\" 42 U.S.C. § 12182(b)(2)(A)(ii); 28
C.F.R. § 36.302. As with other specific anti-discrimination provisions
of title III, the requirement that modifications be \"reasonable\" must
be read in conjunction with title III\'s underlying mandate to provide
persons with disabilities the \"full and equal enjoyment\" of a public
accommodation\'s goods and services. 42 U.S.C. § 12182(a); 28 C.F.R. §
36.201(a).

Under the reasonable modification provision, modifications are generally
required when they are necessary to allow persons with disabilities to
have the full and equal enjoyment of an entity\'s goods and services.
Entities must replace their \"business as usual\" approach with an
effort to determine how they can provide meaningful opportunities for
persons with disabilities to access the goods and receive the services
that other non-disabled Americans receive.

Most reasonable modifications are simple and common sense responses to
the individualized needs of persons with disabilities, as in the case of
permitting a person of the opposite gender to assist an individual with
a disability in a single-sex toilet room, allowing persons to bring food
into cinemas if needed for medical reasons, modifying a \"no pets\" rule
to allow service animals, or allowing persons with disabilities to go on
amusement park rides without waiting in line if necessary to accommodate
their disability.[^9] Other modifications required by section
302(b)(2)(A)(ii) would also be \'reasonable\' if they are not too
dissimilar from the services routinely provided to non-disabled
customers. For instance, physicians must assist patients with
disabilities with dressing and undressing and child care centers must
relax their diapering eligibility requirements for older children with
disabilities.

As Congress recognized, the very reason that the ADA was needed was
because \"business as usual\" deprived persons with disabilities, and
*children with severe disabilities in particular*, with meaningful
opportunities to be integrated into the mainstream of American life. As
Senator Dodd stated:

> Mr. President, as chairman of the Subcommittee on Children and
> Families, I would like to address the important changes that this bill
> will bring about in the daily lives of children with disabilities and
> their families. The Americans with Disabilities Act will create an
> expanded community for children with disabilities and their families.
> The bill is a statement that we want their participation and that they
> have a place among all of us. The ADA requires that children with
> disabilities, [regardless of the severity of their
> disability]{.underline}, be permitted to utilize the same public
> services that others without disabilities utilize as a matter of
> course.
>
> [They are to be permitted to utilize the same]{.underline} health
> clinics, [day care centers]{.underline}, playgrounds, schools,
> restaurants, and stores [that they would normally utilize, in their
> communities, if they were not disabled]{.underline}. Children will
> have new social and recreational and educational opportunities that
> most Americans take for granted. No longer will children be subjected
> to forced busing programs outside their neighborhoods because that is
> where the \"handicapped\" program is located.

135 Cong. Rec. S10721, S10722 (daily ed. Sept. 7, 1989) (Statement of
Sen. Dodd) (emphasis added). Senator Dodd\'s comments reiterate the
theme that integration is the hallmark of compliance under the ADA.

> **2. Jeremy Orr\'s continued participation in the KinderCare program
> does not create a fundamental alteration in the program.**

KinderCare offers after-school care and daycare for children. A variety
of activities are offered but KinderCare is not a school with an
academic curriculum. Plaintiffs have not asked KinderCare to change its
curriculum in any respect to accommodate Jeremy. KinderCare can and does
continue to provide child care for non-disabled children with Jeremy in
the program and it can continue to provide its group activities to other
children even if Jeremy is not fully participatory. Nothing in the
record suggests that Jeremy\'s presence detracts from the ability of
other children to participate fully in the activities provided by
KinderCare.

KinderCare is not being asked to change the basic nature of its child
care services. For instance, KinderCare has not been asked to provide a
remedial educational program, physical therapy, tactile stimulation,
feeding therapy, speech therapy, or any other disability-specific
curriculum for Jeremy, in which case it could have argued that the
nature of its program had been fundamentally altered from general child
care to something else. Likewise, KinderCare has not been asked to
provide extensive medical care for Jeremy, in which case it could have
argued that its program had been fundamentally altered from child care
to pediatric medicine.[^10] If, instead of being asked to supervise a
child with a disability, KinderCare was requested to provide daytime
care for an elderly person, it could argue that to do so would
fundamentally alter its program: KinderCare does not routinely provide
care for geriatric adults, regardless of disability. Moderate
alterations to the nature of a public accommodation\'s goods and
services must be tolerated \-- and, indeed, are often required \-- by
title III; to disregard this congressional directive would be to
eviscerate title III\'s mandate of integration.

KinderCare\'s argument regarding fundamental alteration is based
primarily on its assertions that Jeremy cannot participate in group
activities and that he requires \"custodial care.\"[^11] First, based on
the public school teacher\'s assessment of his capabilities and his
record of achievements in that setting, Jeremy is capable of interacting
with other children in group settings. Donough Decl. at ¶¶ 2-6. Second,
if a personal aide were permitted to assist him in the KinderCare
program, such an aide would direct and motivate Jeremy\'s participating
in group activities. But, in any event, even with a more limited level
of participation, Jeremy is benefitting from the KinderCare program.
While KinderCare believes that the only way to benefit from its program
is to participate actively in group activities, children can derive
other types of benefits \-- such as modeling and increased stimulation
\-- from observing others\' activities. The benefit these children
receive is as valuable to them as is the benefit received by children
who actively participate in group activities. As Jeremy\'s mother
observes:

> 13\. I believe that Jeremy has responded well to his time with
> KinderCare. As recently as February 24, 1995, I was told by \"Miss
> Gloria,\" a KinderCare staff person that Jeremy had been very active
> all afternoon, getting up and walking all around the classroom. That
> same day, \"Miss Becky,\" another KinderCare staff person, commented
> on how much the children liked Jeremy. Previously, on January 26,
> 1995, both \"Miss Gloria\" and \"Miss Sharon,\" yet another KinderCare
> worker commented on how alert and active Jeremy had been lately, and
> said that his seizures appeared to be occurring less frequently. . . .
> From speaking with the people at KinderCare, it appears that Jeremy
> has become very comfortable there. I also know from his school
> experience that Jeremy is stimulated to engage in more age-appropriate
> behavior when he is with other children who are good role models for
> him. . . .
>
> 16\. Jeremy has benefitted, with or without assistance, from being
> placed in group settings with non-disabled children. When Jeremy was
> about three years old, he was placed in a day care center with
> non-disabled children. In his three years at that placement, it was
> evident that he benefitted from being exposed to non-disabled
> children. Jeremy\'s father and I witnessed, along with the child care
> providers, that Jeremy\'s ability to model the actions of the
> non-disabled children was a key to his success during that period.
> Jeremy\'s ability to model stimulated him, helped him to begin
> walking, and made him significantly more mobile.

S. Orr. Decl. at ¶¶ 13, 16.

Jeremy is, in fact, benefitting from the KinderCare program and, with an
aide, could benefit even more. However, even if Jeremy may not be able
to develop to the same degree or in the same manner as non-disabled
children given the nature of his disability, he is legally entitled to
an opportunity to benefit to the extent that he is able. KinderCare
states that its overall goal \"is to help the children develop and
grow.\" Opposition at 4. The extent to which children are able to
develop and grow is properly measured by degrees, not by reference to
some artificially absolute standard. Different children benefit to a
different extent and manner when participating in group child care
programs. It is important to note that \"\'full and equal enjoyment\'
under title III does not encompass the notion that persons with
disabilities must achieve the identical result or level of achievement
of nondisabled persons, but \[it\] does mean that persons with
disabilities must be afforded equal opportunity to obtain the same
result.\" S. Rep. No. 116, 101st Cong., 1st Sess. at 60 (1989) (Labor
and Human Resources); H.R. No. 485 (II), 101st Cong., 2d Sess. at 101
(1990) (Education and Labor).[^12]

The attitude displayed by the KinderCare employees who \"were shocked at
the severity of Jeremy\'s disability and neither could understand why
his parents sought the services of KinderCare since it was apparent, to
them, that Jeremy was in need of custodial care, not group daycare,\"
(Opposition at 7; Tronick Decl. at ¶ 5; Mercado Decl. at ¶ 5) displays
the kind of paternalism that Congress sought to redress with the passage
of the ADA. Section 302(b) of the ADA \"\[i\]s intended to prohibit the
exclusion and segregation of individuals with disabilities and the
denial of equal opportunities enjoyed by others, based on, among other
things, presumptions, patronizing attitudes, fears, and stereotypes
about individuals with disabilities.\" 28 C.F.R. pt. 36, App. B at 596
(July 1, 1994) (\"Preamble\").

By arguing that Jeremy requires \"custodial care,\" KinderCare seems to
imply that he should be in a specialized program for children with
disabilities. Even if Jeremy might benefit from a specialized program
and one was available, the availability of

specialized programs for persons with disabilities, whether from the
same entity or other businesses, does not relieve a public accommodation
from its legal obligation to provide access to its standard
program.[^13] As the Department has recognized:

> \[t\]his is an important and overarching principle of the Americans
> with Disabilities Act. Separate, special, or different programs that
> are designed to provide a benefit to persons with disabilities cannot
> be used to restrict the participation of persons with disabilities in
> general, integrated activities.
>
> . . . Modified participation for persons with disabilities must be a
> choice, not a requirement.\"

Preamble at 596.

KinderCare further argues that it is unreasonable to require it to
retain Jeremy in its program because doing so lowers the
caregiver-to-child ratio below the 1:12 level required by California
law. Opposition at 19-20, [citing]{.underline} Cal. Code Regs. tit. 22,
§ 101179(b)(5) (1994). This issue does not arise, however, if Jeremy is
allowed to be accompanied by a personal care attendant, because
KinderCare employees would not be focusing disproportionate attention on
Jeremy. Furthermore, although KinderCare has had Jeremy in its program
since September 1994, it has not alleged that it was notified by any
licensing official that its license was put in any jeopardy by Jeremy\'s
presence.

Finally, KinderCare argues that it is under no legal obligation to
provide personal services for Jeremy or other persons with disabilities.
Opposition at 13-14. The Department\'s title III regulation generally
exempts public accommodations from having to provide personal services
to persons with disabilities. 28 C.F.R. § 36.306. \"Personal services\"
include assistance with toileting, dressing, or eating.
[Id.]{.underline} This exemption, however, does not apply when personal
services are routinely provided to others:

> Of course, if personal services are customarily provided to the
> customers or clients of a public accommodation, [e.g.]{.underline}, in
> a hospital or senior citizen center, then these personal services
> should also be provided to persons with disabilities using the public
> accommodation.

Preamble at 614. Child care centers like KinderCare, who have programs
for young children, routinely provide diapering and other personal
services in their normal course of business. Here, where the very nature
of child care requires KinderCare to provide non-disabled children with
personal services such as diapering, toileting assistance, assistance
with eating, etc., these services must be provided to children with
disabilities as well. Indeed, KinderCare indicates that it routinely
provides these services to children with disabilities. Opposition at 5;
Muscari Decl. at ¶¶ 10, 11.

> **3. The presence of a personal care attendant for Jeremy does not
> create a fundamental alteration in KinderCare\'s program**.

KinderCare maintains that it is unreasonable to require it to allow a
third party \-- a personal care attendant trained by United Cerebral
Palsy (\"UCP\") and provided free of charge by the Alta Center \-- on
KinderCare\'s premises on a routine basis for the following reasons: (1)
KinderCare\'s supervision of a personal care attendant for Jeremy would
distract teachers from other students; (2) the aide would not be under
KinderCare\'s control; and (3) the aide might not meet KinderCare\'s
standards.

KinderCare does not, and indeed cannot, state that an aide will not
increase Jeremy\'s level of participation in KinderCare\'s group
activities: KinderCare has never allowed the Orrs or the Alta Center to
provide an aide to accompany Jeremy, so it has no basis on which to make
such a determination. \"\[T\]he determination of whether a particular
modification is \'reasonable\' involves a fact-specific, case-by-case
inquiry that considers, among other factors, the effectiveness of the
modification in light of the nature of the disability in question . . .
\" [Staron v. McDonald\'s Corp.]{.underline}, 1995 WL 14875 (2d Cir.
April 4, 1995) (citations omitted). Jeremy\'s experiences as observed by
his public school teacher and parents indicate that his level of
interaction is likely to increase with the presence of an aide who can
help motivate his participation in group activities.

As to KinderCare\'s first defense, the presence of a well-trained aide
should enhance, rather than distract KinderCare employees\' ability to
concentrate on other children. It is important to note that KinderCare
has not stated that it never allows volunteer aides to help care for
other children. In fact, California law encourages private child care
centers to help train caregivers through volunteer apprenticeships. Cal.
Code Regs. tit. 22 § 10136.5(b)(c) (1994). The supervisory
responsibilities associated with these volunteers would likely be
greater than those associated with the supervision of a professional,
trained personal care attendant for Jeremy.

Secondly, KinderCare\'s argument regarding its alleged lack of control
over the aide (Opposition at 21) is undercut by the fact that KinderCare
has not explored reasonable ways to address this legitimate concern. For
instance, KinderCare and the Alta Center could structure an arrangement
under which KinderCare would be delegated the authority to fire or
discipline the aide if he or she did not behave appropriately. Of
course, while the Department believes that it is neither a fundamental
alteration nor an unreasonable modification to permit a personal care
attendant to attend to Jeremy while at KinderCare, if a particular aide
behaves in a manner that is incompatible with the safe operation of
KinderCare\'s program, the company may refuse to admit that attendant.

Lastly, KinderCare argues that it \"would face a substantial risk of
liability\" if it allowed Jeremy to be accompanied by an aide, because
it would be legally responsible \"for ensuring that this aide is
physically, mentally, and occupationally capable.\" Opposition at 21.
KinderCare notes that it has an extensive list of requirements for
faculty personnel, including aides, such as on-the-job training, health
screening, and a criminal record clearance. [Id.]{.underline} at 22
n.10, [citing]{.underline} Cal. Code Reg. tit. 22, §§ 101216, 101316.3.
Public accommodations may generally require personal care attendants to
meet the legitimate health, safety, and educational standards set for
their own employees. As discussed above, KinderCare has not indicated
that it made any effort to determine whether the personal care attendant
identified by the Alta Center and trained by UCP meets these
specifications. Nor is there anything in the record to suggest that
KinderCare has inquired as to the nature of the training provided by
UCP, or whether UCP or the Alta Center conducts its own health, safety,
and criminal background inspections of personal care attendants. Thus,
KinderCare\'s objections are merely theoretical ones which are not borne
out by the facts in this case. As the Second Circuit noted in
[Staron]{.underline}, a determination of whether a particular
modification is reasonable should be decided on specific facts, not
conjecture or speculation. [Staron v. McDonald\'s Corp]{.underline}.,
1995 WL 146875 (2d Cir. April 4, 1995).

> **B. [WILLIAM AND SHERRY ORR ARE LIKELY TO PREVAIL ON THEIR CLAIM OF
> DISCRIMINATION ON THE BASIS OF ASSOCIATION.]{.underline}**

Jeremy\'s parents allege that they are being denied daycare services
because of their relationship with Jeremy. Complaint at ¶ 16. Section
302(b)(1)(E) of title III prohibits discrimination against individuals
who are associated with persons with disabilities:

> It shall be discriminatory to exclude or otherwise deny equal goods,
> services, facilities, privileges, advantages, accommodations, or other
> opportunities to an individual or entity because of the known
> disability of an individual with whom the individual or entity is
> known to have a relationship or association.

42 U.S.C. § 12182(b)(1)(E); [see also]{.underline} 28 C.F.R. § 36.205.
[Cf.]{.underline} 42 U.S.C. § 12112(b)(4) (prohibiting employment
discrimination based on known association with person with a
disability).

In a very real sense, the after-school program offered by KinderCare is
as much a service to parents as it is to children. Day care allows
parents to work full-time without having to leave their children
unattended. KinderCare\'s program is routinely available to the parents
of non-disabled children, and, if the company is allowed to expel
Jeremy, this service will be denied to his parents. Sherry Orr and Polly
Caple have both stated that quality after-school care is extremely
difficult to find in the Sacramento area.[^14] S. Orr Decl. at ¶ 15;
Caple Decl. at ¶ 9. Sherry Orr has stated that she would have to quit
working full-time if KinderCare is allowed to expel Jeremy.[^15]

In fact, if this Court were to countenance Jeremy\'s expulsion, it is
likely that some child care providers who currently accept children with
severe disabilities into their programs out of a perceived legal duty
will not continue to do so. This will deprive not only the children with
disabilities of the benefits of child care, but their parents as well.

> **C. [THE BALANCE OF HARDSHIPS WEIGHS HEAVILY IN FAVOR OF
> PLAINTIFFS.]{.underline}**
>
> **1. Jeremy and his parents will suffer irreparable injury if expelled
> from KinderCare\'s after-school program.**

Due to the nature of Jeremy\'s disability, it takes him a long time to
adjust to new surroundings. He has become familiar and comfortable with
the KinderCare program. Decl. of S. Orr at ¶ 13. His seizures appear to
be occurring with less frequency. [Id.]{.underline} The longer he is in
a setting, the more engaged he becomes, both independently and with
others. [Id.]{.underline} As his mother has noted:

> 17\. Jeremy has some difficulty adjusting to changes in his physical
> settings. In general, Jeremy needs consistency and stability. Changes
> in his routine and environment are stressful for him and he tends to
> withdraw and be less inquisitive. It often takes him a long time to
> get comfortable in a new setting. In time, Jeremy has become
> acquainted with both the children and the staff and the physical
> environment at KinderCare. KinderCare\'s staff has commented to me
> that Jeremy has become increasingly more alert in the classroom and
> that he is well-liked among the children.
>
> 18\. If Jeremy is disenrolled from KinderCare I believe he will
> experience a real set-back with respect to his increasing sociability
> and motivation to participate.

Decl. of S. Orr at ¶¶ 17-18. Taking Jeremy out of the KinderCare
environment (in which he has been since last September) pending a
determination of the merits of Plaintiffs\' ADA claims would cause him
undue distress that could not later be redressed through legal remedies.
An injunction is the only appropriate means of ensuring that his
development is not stifled during this formative stage of his life.
KinderCare states, \"The only consequence of such a ruling will be that
Plaintiffs will have to seek alternative care \-- care which is
available in the surrounding community.\" Opposition at 28. Contrary to
KinderCare\'s assertion, the record reflects that the Orrs are likely to
have an extremely difficult time finding alternative child care for
Jeremy. S. Orr Decl. at ¶ 15; Caple Decl. at ¶ 9.[^16]

Finally, title III of the ADA does not allow private plaintiffs to
collect monetary damages. 42 U.S.C. § 12188(a)(1); 28 C.F.R. § 36.501.
Instead, their only available remedies are injunctive relief and
attorneys fees. Thus, Plaintiffs have no adequate remedy at law for
KinderCare\'s violations of title III. None of them could be compensated
under the ADA for emotional distress or pain and suffering, nor could
William and Sherry Orr be compensated for any lost salary associated
with caring for Jeremy.

> **2. KinderCare will not suffer irreparable injury if the Court
> enjoins it from expelling Jeremy.**

Enjoining KinderCare from expelling Jeremy from its program preserves
the status quo \-- the traditional purpose of a preliminary injunction.
The only harm KinderCare alleges it may suffer if the status quo is
preserved is a generalized fear that doing so may compromise its
license, a fear that is unsupported by the record. There are neither
supporting affidavits from KinderCare personnel nor statements from
licensing officials that indicate that Jeremy\'s presence in any way
compromises KinderCare\'s license. In fact, the record supports the
opposite conclusion. KinderCare has retained Jeremy in its program since
September 1994 and has not indicated that it has received a single
warning, censure, or other action from State licensing officials.

Likewise, KinderCare does not provide facts to support its claim that
allowing an aide to accompany Jeremy will be detrimental to its program,
although this does occasion a change in the status quo. KinderCare\'s
defense is based on speculation and conjecture. It has not engaged in
meaningful discussions with the Alta Center or UCP to determine their
practices regarding hiring, conducting background investigations, or
training of personal care attendants. It has not asked to interview or
meet with prospective aides. It has not discussed whether they are
willing to delegate to KinderCare the authority to discipline or fire an
aide. It has not provided its hiring qualifications to the Alta Center
or UCP and had those organizations refuse to find someone who meets the
criteria. Also, KinderCare has not been asked to subsidize the aide\'s
salary, so it would suffer no financial harm by allowing an personal
care attendant to accompany Jeremy. Instead of articulating concrete
harms it would suffer, KinderCare simply hypothesizes that \"to do so
would open up a Pandora\'s box for KinderCare from which it could never
escape.\" Opposition at 29.

> **D. [PUBLIC POLICY STRONGLY FAVORS GRANTING THE
> INJUNCTION]{.underline}**.

The public interest \"is an important consideration in the exercise of
equitable discretion in the enforcement of statutes.\" [United States v.
Odessa Union Warehouse Co-op]{.underline}, 833 F.2d 172, 176 (9th Cir.
1987). The court \"must always consider whether the public interest
would be advanced or impaired by issuance of an injunction in any action
in which the public interest is affected.\" [Caribbean Marine Services
Co., Inc. v. Baldridge]{.underline}, 844 F.2d 668, 677 (9th Cir. 1988).
Discrimination against an individual on the basis of his or her
disability under title III of the ADA \"is clearly contrary to public
policy and the interests of society as a whole.\" [Anderson v. Little
League Baseball, Inc.]{.underline}, 794 F. Supp. 342, 345 (D. Ariz.
1992) (granting temporary restraining order in favor of a coach who uses
a wheelchair in order to allow him to serve as an on-field base coach
during Little League softball tournament).

Public policy weighs heavily in favor of sending a strong message to
child care providers that they may not discriminate against children
with disabilities. While parents of non-disabled children often have
difficulty finding adequate, affordable child care, this difficulty is
significantly amplified for parents of children with severe disabilities
who are often forced to forego full-time work in order to care for their
children. [See]{.underline} [supra]{.underline} at n. 15. Children with
disabilities who are denied opportunities to attend mainstream child
care programs are deprived of meaningful opportunities to learn from
their non-disabled peers during their formative years. They may
internalize a sense of isolation and develop a self-image of being
fundamentally \"different\" from other children.

The only alternatives facing families like the Orrs is to forego
employment or to institutionalize their children, even when they are
doing well in public school. These alternatives are incompatible with
the public interest. As Senator Dodd stated during the passage of the
ADA, isolating children with disabilities from mainstream health
clinics, child care centers, playgrounds, schools, restaurants, and
stores:

> . . . severely stigmatize\[s\] children with disabilities and their
> families. While it may be more cost efficient in some cases to
> congregate services for children with disabilities in a centralized
> location, it has been determined that such costs are outweighed by the
> benefits to children with disabilities and their families of being
> able to obtain services in their neighborhoods with their friends and
> family around.

135 Cong. Rec. S10721, S10722 (daily ed. Sept. 7, 1989) (Statement of
Sen. Dodd, Chair, Senate Subcommittee on Children and Families); [see
also]{.underline} congressional statement of purpose in the
newly-enacted Improving America\'s School Act, 20 U.S.C. § 1491a(c)(6)
(Family Support for Families of Children with Disabilities) (1994)
(\"Families must be supported in their efforts to promote the
integration and inclusion of their children with disabilities into all
aspects of community life.\").

The societal consequences of excluding children with disabilities from
mainstream child care are equally devastating. Non-disabled children who
are segregated from children with disabilities have no opportunity to
assimilate people with disabilities into their concept of who
constitutes American society.[^17] Non-disabled individuals who have had
positive childhood experiences with persons with disabilities are less
likely as adults to discriminate against persons with disabilities in
employment, public programs, and public accommodations.

> **E. [THE OVERALL BALANCE FAVORS PLAINTIFFS.]{.underline}**

Where the balance of the hardship decidedly favors the plaintiff, a
lesser showing of likelihood of success on the merits is required; where
the probability of success on the merits is high, only the possibility
of irreparable injury need be shown. [California v. American Stores
Co.]{.underline}, 872 F.2d 837, 840-41 (9th Cir. 1989), [rev\'d on other
grounds]{.underline}, 495 U.S. 271 (1990); [Caribbean Marine Services
Co., Inc. v. Baldridge]{.underline}, 844 F.2d 668, 674 (9th Cir. 1988);
[United States v. Odessa Union Warehouse Co-op]{.underline}, 833 F.2d
172, 174 (9th Cir. 1987).

Here, there is a substantial likelihood that Plaintiffs will succeed on
the merits of their ADA claims and, almost certainly, that Jeremy will
suffer unduly if he is taken out of the KinderCare environment with
which he is familiar. Neither Jeremy nor his parents can recover
monetary damages for discrimination under title III. Moreover, public
policy weighs heavily in favor of sending child care centers a strong
message that they must provide children with disabilities an opportunity
to participate in their programs that is equal to the opportunities
provided to nondisabled children.

///

///

///

**III. [CONCLUSION]{.underline}**

The Court should enjoin KinderCare from expelling Jeremy and should
require KinderCare to permit an aide to accompany him in its
after-school program.

Dated:

Sacramento, CA Washington, DC

April \_\_\_\_th, 1995 April \_\_\_\_th, 1995

Respectfully submitted,

CHARLES J. STEVENS, KERRY ALAN SCANLON,

United States Attorney, Deputy Assistant Attorney

Eastern Dist. of California General for Civil Rights

By: [                          ]{.underline} By:
[                          ]{.underline}

EDMUND F. BRENNAN, JOHN L. WODATCH, Chief

Deputy Civil Chief JOAN A. MAGAGNA, Deputy Chief

Office of the U.S. Attorney MARY LOU MOBLEY, Attorney

Eastern Dist. of California U.S. Department of Justice

555 Capitol Mall, Suite 1150 Civil Rights Division

Sacramento, CA 95814 Disability Rights Section

Tel: (916) 554-2700 P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

[^1]: ^?^ Although Plaintiffs seeks redress for violations of the ADA
    and California law, the United States\' brief addresses only those
    issues arising under the ADA.

[^2]: ^?^ Pursuant to statutory directive, 42 U.S.C. § 12186(b), the
    Department of Justice promulgated regulations to implement title III
    of the ADA. See 28 C.F.R. pt. 36. Accordingly, the title III
    regulation is entitled to substantial deference. [See]{.underline}
    [Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
    Inc.]{.underline}, 467 U.S. 837, 844 (1984) (where Congress
    expressly delegates authority to an agency to issue legislative
    regulations, the regulations \"are given controlling weight unless
    they are arbitrary, capricious, or manifestly contrary to the
    statute.\"). [See also]{.underline} [Petersen v. University of Wis.
    Bd. of Regents]{.underline}, 818 F. Supp. 1276, 1279 (W.D. Wis.
    1993) (applying [Chevron]{.underline} to give controlling weight to
    Department of Justice interpretations of title II of the ADA).

    The Department\'s interpretation of the regulation is also entitled
    to deference. Courts should grant controlling weight to such
    interpretations unless they are plainly erroneous or inconsistent
    with the regulation. [Thomas Jefferson Univ. v.
    Shalala]{.underline}, 114 S. Ct. 2381, 2386 (1994) (citing [Martin
    v. Occupational Safety and Health Review Comm\'n]{.underline}, 499
    U.S. 144, 150-51 (1991); [Lyng v. Payne]{.underline}, 476 U.S. 926,
    939 (1986); [Udall v. Tallman]{.underline}, 380 U.S. 1, 16 (1965);
    [Bowles v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410, 414
    (1945)); [Stinson v. United States]{.underline}, 113 S. Ct. 1913,
    1919 (1993). [See also]{.underline} [Fiedler v. American
    Multi-Cinema, Inc.]{.underline}, 871 F. Supp. 35, 36-37 n.4 (D.D.C.
    1994) (granting controlling weight to the Department of Justice\'s
    [Technical Assistance Manual for Title III of the ADA]{.underline}
    (\"[Technical Assistance Manual]{.underline}\"), stating that the
    Department, as author of the title III regulation, is the principle
    arbiter of its meaning and should be accorded substantial deference
    in interpreting its regulation). The [Technical Assistance
    Manual]{.underline} was also issued pursuant to statutory mandate.
    42 U.S.C. § 12206(c)(3).

[^3]: ^?^ The United States relies on the declarations provided by the
    parties, attached to the Plaintiffs\' Motion for Preliminary
    Injunction and Defendant\'s Opposition thereto.

[^4]: ^?^ The aide would be selected and trained by the United Cerebral
    Palsy Association. Caple Decl. at ¶ 8.

[^5]: ^?^ While KinderCare argues that Plaintiffs seek extraordinary
    relief in the form of a mandatory injunction that goes \"well beyond
    maintaining the status quo pendente lite\" (Opposition at 10), the
    core injunctive relief sought by Plaintiffs is to maintain the
    status quo: to keep Jeremy in KinderCare\'s program. The only
    affirmative relief sought by Plaintiffs \-- requiring KinderCare to
    allow a personal care attendant to accompany Jeremy \-- should
    alleviate, rather than aggravate, any hardship to Kindercare that
    might occur by retaining Jeremy pending a trial on the merits.

[^6]: ^?^ There is no dispute that KinderCare is subject to the
    requirements title III imposes on public accommodations. 42 U.S.C. §
    12181(7)(K); 28 C.F.R. § 36.104. Complaint at ¶¶ 4, 7; Answer at ¶¶
    4, 17. Nor does KinderCare contest that Jeremy is a person with a
    disability, 42 U.S.C. § 12101(2); 28 C.F.R. § 36.104 (def. of
    disability), or that its decision to expel Jeremy affects his
    parents, 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. § 36.205. Complaint
    at ¶ 15; Answer at ¶ 15. Likewise, Defendant admits that its
    decision to expel Jeremy was based on its opinion that, given the
    nature of his disability, he was unable to participate in group
    activities and needed \"custodial care.\" Opposition at 2 [et
    seq.]{.underline}

[^7]: ^?^ The reasonable modification provision should be construed so
    that it is consistent with the \"full and equal enjoyment\" mandate
    underlying the more general section. [See]{.underline} [Technical
    Assistance Manual]{.underline} at § III-3.1000.

[^8]: ^?^ Congress clarified the scope of the fundamental alteration
    defense by giving several examples. First, a physician who
    specializes in treating burn victims \"could not refuse to treat a
    burn victim due to deafness, but could refuse to treat a deaf person
    who did not have burns but had some unrelated medical condition.\"
    S. Rep. No. 116, 101st Cong., 1st Sess. at 62, 63 (1989) (Labor and
    Human Resources); [see also]{.underline} H.R. Rep. No. 485 (II),
    101st Cong., 2d Sess. at 105, 106 (1990) (Education and Labor).

    Second, a drug rehabilitation clinic could refuse to treat a person
    who was not a drug addict but could not refuse to treat an addict
    simply because the client had a positive HIV status. S. Rep. No.
    116, 101st Cong., 1st Sess. at 63 (Labor and Human Resources); [see
    also]{.underline} H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. at
    106 (1990) (Education and Labor). [Accord]{.underline} [United
    States v. Morvant]{.underline}, No. CIV-A-93-3251, 1995 WL 131093
    (E.D. La. March 22, 1995) (granting United States\' motion for
    summary judgment against a dentist who refused to provide routine
    dental care to patients who were HIV positive or who had AIDS).

[^9]: ^?^ [Technical Assistance Manual]{.underline} at § III-4.2100.
    These interpretations of \"reasonable modifications\" should be
    accorded controlling weight. [See]{.underline} [supra]{.underline}
    at n.2.

[^10]: ^?^ Child care centers must provide medical services that are
    necessary to integrate children with disabilities, as long as those
    procedures meet the standards set forth for other modifications of
    policies, practices, and procedures, [i.e.]{.underline}, the
    standards of fundamental alteration, reasonableness, and direct
    threat. For instance, child care centers may be required to dispense
    pre-measured doses of medication on a regular basis. KinderCare
    indicates that it does this routinely for children with
    disabilities. Muscari Decl. at ¶ 10; Opposition at 5.

[^11]: ^?^ The heart of KinderCare\'s argument is that Jeremy requires
    \"custodial care,\" something that it deems incompatible with its
    group child care setting. KinderCare and its declarants use
    \"custodial care\" as though it were a legal term of art, endowed
    with a precise meaning. [See]{.underline}, [e.g.]{.underline},
    Opposition at 2, 7-9, 11-14, 17-26, 28-29; Tronick Decl. at ¶¶ 7, 8;
    Wilcox Decl. at ¶¶ 4-8; Hacha Decl. at ¶ 4; Mercado Decl. at ¶¶ 7,
    13. \"Custodial care\" is not found anywhere in the ADA or the
    Department of Justice title III regulation. Nowhere does KinderCare
    define the term except to contrast \"custodial care\" to \"group\"
    child care. The United States will assume that the term as used by
    KinderCare means supervision given on a one-to-one ratio, combined
    with the delivery of some personal services such as feeding and
    diapering, rather than the institutionalization or hospitalization
    of a child.

[^12]: ^?^ For example, a gym could not use a person\'s mobility
    impairment as a rationale for excluding the person from an exercise
    class; it is not enough to argue that the person with a disability
    cannot do all of the exercises and derive the same result from the
    class as persons without disabilities. H.R. Rep. No. 485 (III),
    101st Cong., 2d Sess. at 55 (1990) (Judiciary); [see
    also]{.underline} H.R. Rep. No. 485 (IV), 101st Cong., 2d Sess. at
    57 (1990) (Energy and Commerce). Likewise, a symphony orchestra
    could not exclude a deaf patron on the basis of his disability,
    assuming for him that he could not benefit in any way from attending
    a concert. He may indeed benefit from the experience, even if the
    experience he has and the benefit he receives are different from
    those of other audience members. It is for people with disabilities,
    not public accommodations, to determine whether or not they will
    benefit from a good or service.

[^13]: ^?^ [See]{.underline} 42 U.S.C. § 12182(b)(1)(C)
    (\"Notwithstanding the existence of separate or different programs
    or activities provided in accordance with this section, an
    individual with a disability shall not be denied the opportunity to
    participate in such programs or activities that are not separate or
    different.\"); 28 C.F.R. § 36.203(b) (using the statutory language);
    [see also]{.underline} 28 C.F.R. § 36.203(c)(1) (\"Nothing in this
    part shall be construed to require an individual with a disability
    to accept an accommodation, aid, service, opportunity, or benefit
    available under this part that such individual chooses not to
    accept.\").

[^14]: ^?^ As discussed above, even if quality care for children with
    disabilities is widely available, KinderCare cannot use this fact as
    a pretext on which to expel Jeremy.

[^15]: ^?^ According to a recent study, fully thirty-one percent (31%)
    of mothers of children with severe disabilities report that they are
    unemployed due to a lack of available child care. Dale Bordon Fink,
    [\"My Life Was Turned Upside Down . . .\": Child Care and Employment
    Among Mothers of Young Children with Disabilities]{.underline}.
    Wellesley College Center for Research on Women, Working Paper
    Series, No. 232 (1991) at 10.

[^16]: ^?^ Polly Caple, who has been Jeremy Orr\'s service coordinator
    at the Alta Center since 1990, states:

    > I have spoke \[[sic]{.underline}\] at some length with the Orrs
    > about their difficulty in finding appropriate child care for
    > Jeremy. I am aware that over the years they have had an extremely
    > difficult time with this. They have explored every avenue and have
    > run into a series of problems including unreliable providers,
    > inadequate programs or staffing and most of all prejudice against
    > including \[[sic]{.underline}\] children with disabilities. I am
    > also aware that if Jeremy is terminated from KinderCare it will be
    > very detrimental for him and an extreme hardship for the family.
    > It is very difficult to find appropriate child care in this area,
    > and I think it will be nearly impossible for the family to find
    > appropriate alternative afterschool care if Jeremy is forced to
    > leave KinderCare.

    Caple Decl. at ¶ 9.

[^17]: ^?^ Non-disabled children in KinderCare\'s program have
    identified themselves to William and Sherry Orr as Jeremy\'s
    friends. S. Orr. Decl. at ¶ 7. This type of bonding is one of the
    values of mainstream child care.