Bill Lann Lee,

Acting Assistant Attorney General

John L. Wodatch, Chief

Renee M. Wohlenhaus, Deputy Chief

Philip L. Breen, Special Legal Counsel

Ryan E. Warren, Trial 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

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JEREMY ALVAREZ, through his next ) CASE NO. C.99-1202 MEJ\
friends LYNN and JOSE ALVAREZ, )\
LYNN ALVAREZ, and JOSE ALVAREZ ) **UNITED STATES' BRIEF AS**\
) **[AMICUS CURIAE]{.underline} IN SUPPORT**\
Plaintiffs, ) **OF PLAINTIFFS' MOTION FOR**\
) **PRELIMINARY INJUNCTION**\
v. ) **AND REQUEST FOR ORAL**\
) **ARGUMENT**\
FOUNTAINHEAD, INC., ANA SUAN, )\
SARAH ZIMMERMAN, AND DOES 1 ) Date: May 13, 1999\
through 10, ) Time: 10:00a.m.\
) Court: Magistrate\
Defendants. ) Judge Maria\
) Elena Jones\
[                                   ]{.underline}

**TABLE OF CONTENTS**

TABLE OF AUTHORITIES iii

I. FACTS 2

II\. ARGUMENT 9

> A. JEREMY ALVAREZ IS LIKELY TO PREVAIL ON HIS ADA CLAIM. 9

1\. Fountainhead\'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 9

> 2\. Jeremy Alvarez' participation in the Fountainhead program does not
> create a fundamental alteration in the program. 14
>
> 3\. Fountainhead cannot assert that it is not permitted to require its
> teachers to be trained to supervise Jeremy's use of an inhaler due to
> it employment contracts with its teachers 15
>
> B. LYNN AND JOSE ALVAREZ ARE LIKELY TO PREVAIL ON THEIR CLAIM OF
> DISCRIMINATION ON THE BASIS OF ASSOCIATION. 17
>
> C. THE BALANCE OF HARDSHIPS WEIGHS HEAVILY IN FAVOR OF PLAINTIFFS. 19
>
> 1\. Jeremy and his parents will suffer irreparable injury if Jeremy is
> denied enrollment in Fountainhead's pre-school program because he may
> not bring his inhaler to school. 19

2\. Fountainhead will not suffer irreparable injury if the Court enjoins
it from enforcing its "no medications" policy and orders it to undertake
a reasonable modification to its policies. 19

> D. PUBLIC POLICY STRONGLY FAVORS GRANTING THE INJUNCTION. 20
>
> E. THE OVERALL BALANCE OF INTERESTS FAVORS PLAINTIFFS. 22

III\. CONCLUSION 23

**TABLE OF AUTHORITIES**

**CASES**

[Anderson v. Little League Baseball, Inc.]{.underline},\
794 F. Supp. 342 (D. Ariz. 1992) 20

[Bragdon v. Abbott,]{.underline} 524 U.S. 624,(1998) 1-2, 12

[Bowles v. Seminole Rock & Sand Co.]{.underline},\
325 U.S. 410 (1945) 2

[Cadence Design Sys. v. Avant! Corp.]{.underline},\
125 F.3d 824 (9 Cir.), cert. denied,\
118 S. Ct. 1797 (1998) 9, 22

[California v. American Stores Co.]{.underline},\
872 F.2d 837 (9th Cir. 1989), [rev\'d on\
other grounds]{.underline},495 U.S. 271 (1990) 22

[Caribbean Marine Services Co., Inc. v. Baldridge]{.underline},\
844 F.2d 668 (9th Cir. 1988) 9, 20, 22

[Chevron, U.S.A., Inc. v. Natural Resources Defense Council,\
Inc.]{.underline}, 467 U.S. 837 (1984) 1

[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) 9

[Hurd v. Hodge]{.underline}, 334 U.S. 24, 35, 68 S.Ct. 847, 853,\
92 L. Ed. 1187 (1948) 16

[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) 9

[Petersen v. University of Wis. Bd. of Regents]{.underline},\
818 F. Supp. 1276 (W.D. Wis. 1993) 1

[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) 9

[Thomas Jefferson Univ. v. Shalala]{.underline},\
114 S. Ct. 2381 (1994) 2

[Tiffany v. Boatman's Institution]{.underline}, 85 U.S. 375, 385\
21 L. Ed. 868 (1873) 16

[Udall v. Tallman]{.underline},\
380 U.S. 1 (1965) 2

[United Paperworkers Int'l Union v. Misco, Inc.]{.underline},\
484 U.S. 29,108 S.Ct. 364, 373,\
98 L. Ed. 2d 286 (1987) 16

[United States v. Morvant]{.underline},\
No. CIV-A-93-3251, 1995 WL 131093 (E.D. La. March 22, 1995) 20

[United States v. Odessa Union Warehouse Co-op]{.underline},\
833 F.2d 172 (9th Cir. 1987) 22

**RULES**

28 C.F.R. pt. 36 1

28 C.F.R. pt. 36, App. B 17

28 C.F.R. § 36.102(a)(1) 16

28 C.F.R. § 36.104 10

28 C.F.R. § 36.201(a) 10, 12

28 C.F.R. § 36.205 10, 18

28 C.F.R. § 36.208 11

28 C.F.R. § 36.302 11, 12

28 C.F.R. § 36.501 19

**STATUTES**

42 U.S.C. § 12101(2) 10

42 U.S.C. § 12112(b)(4) 18

42 U.S.C. § 12181(7)(K) 10

42 U.S.C. § 12182(a) 10, 12

42 U.S.C. § 12182(b)(1)(A)(i) 10

42 U.S.C. § 12182(b)(1)(E) 10, 18

42 U.S.C. § 12182(b)(2)(A)(ii) 10, 11, 12

42 U.S.C. § 12188(a)(1) 19

**PUBLICATIONS**

Technical Assistance Manual for Title III of the ADA,

United States Department of Justice 2, 11, 13

INTRODUCTION

This case was filed by the parents of Jeremy Alvarez, a four-year old
child with a disability, on his behalf and on the basis of their own
claims, against Fountainhead, Inc., the owner and operator of
Fountainhead Montessori Schools ("Fountainhead"), a private school
program in Dublin, California. Plaintiffs allege that Fountainhead\'s
enforcement of its "no medications" policy in regard to 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 , 1999. 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 Fountainhead from enforcing its "no
medications" policy in regard to Jeremy. 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 likely to
succeed on the merits of their ADA claims, that they will suffer
irreparable harm if Fountainhead is not required to make a reasonable
modification to its "no medications" policy, that the harm to Plaintiffs
substantially outweighs any possible harm to Fountainhead if the Court
orders Fountainhead not to enforce its "no medications" policy and to
provide a reasonable modification to its policies with respect to
Jeremy, and that public policy strongly favors granting a preliminary
injunction in favor of Plaintiffs.

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

Plaintiffs are Jeremy Alvarez and his parents, Lynn and Jose Alvarez.
Jeremy Alvarez is a four-year old child who has been diagnosed with
asthma. Complaint ¶ 14; Declaration of Lynn Alvarez In Support of
Plaintiffs' Motion for Preliminary Injunction ("Alvarez Decl."), ¶
2.[^3] He and his parents desire that he attend Fountainhead pre-school.
Complaint ¶ 14. Currently, Jeremy's medical condition requires, and his
doctor has prescribed, that Jeremy use a preventative asthma medication
at home twice a day and an albuterol inhaler whenever he starts wheezing
or becomes short of breath. Alvarez Decl. ¶ 3; Declaration of Henry Wax,
M.D., In Support of Plaintiffs' Motion for Preliminary Injunction ("Wax
Decl."), ¶ 5. Albuterol is an aerosol medication commonly prescribed for
the relief of asthma and for the prevention of exercise-induced asthma.
Complaint ¶ 14; Wax Decl. ¶¶ 3-4; Declaration of David Denmead, M.D., In
Support of Plaintiffs' Motion for Preliminary Injunction ("Denmead
Decl."), ¶ 5; Declaration of Colleen Richardson In Support of
Plaintiffs' Motion for Preliminary Injunction ("Richardson Decl."), ¶ 3.
Jeremy has been using the albuterol inhaler since he was two years old
and he can use it himself, although he needs some supervision when doing
so. Complaint ¶ 14. Plaintiffs are requesting little more than that
Jeremy be supervised throughout the day by teachers who have been
trained to keep watch for the symptoms of an asthma attack, and that the
teachers supervise Jeremy's use of his asthma inhaler should he have
need for it. Wax Decl. ¶¶ 5-7. The albuterol, if used within five
minutes of the first signs of an asthmatic episode, can alleviate or
lessen the severity of an asthma attack. Complaint ¶ 14.

In September of 1998, Lynn and Jose Alvarez began to investigate
pre-schools for Jeremy. *Id.,* ¶ 16. They visited several schools in the
area, researched curricula, sat in on classes and met several teachers
and other school personnel at these various schools. *Id.* At the end of
this process they chose Fountainhead because they liked the teachers and
curriculum, it had a part-time curriculum, and this particular school
was close to Jeremy's grandparents' home. *Id.* Jeremy's parents could
not afford to send Jeremy to school for a full day of class. Alvarez
Decl. ¶ 7. Thus, it was envisioned that Jeremy's grandparents would pick
Jeremy up after school and care for him until the end of his parents
workday. Jeremy's name was placed on the waiting list for admission.
*Id.*

In late November 1998, Fountainhead notified Jeremy's parents that a
space would be available beginning January 4, 1999. Complaint ¶ 17. Mrs.
Alvarez, Jeremy's mother, requested application forms from Fountainhead.
*Id.*, ¶ 18. During the course of this conversation, Mrs. Alvarez
mentioned to Candyce Myers, a Fountainhead registration department
employee, that Jeremy had asthma and needed to have his albuterol
inhaler with him at all times. *Id.* Ms. Myers informed Jeremy's mother
that the school had a policy of "no medications" on school grounds.
*Id.* Despite this statement Mrs. Alvarez requested an application be
mailed and left a message for the chief administrator, Ana Suan, to call
her. *Id.*

When Ms. Suan returned the call she confirmed the school's "no
medications" policy. *Id.* ¶ 12. She asked Mrs. Alvarez how bad Jeremy's
asthma was and if he could come to school without his inhaler. *Id.* Ms.
Suan suggested Jeremy's father or grandparents could bring Jeremy his
inhaler when he needed it. *Id.* When Mrs. Alvarez said this was
impossible, Ms. Suan suggested Mrs. Alvarez speak with a teacher at the
school to discuss how they had handled such situations in the past.
*Id.* Ms. Suan told Mrs. Alvarez that a child with asthma had attended
Fountainhead in the past without medication and had experienced an
asthma attack during school hours. *Id.*, ¶ 20. According to Ms. Suan's
account, school personnel handled this situation by placing the child in
a janitor's closet with the hot water running and the door closed with
the idea that the steam would help relieve the asthma attack. *Id.*

During the same conversation Ms. Suan also informed Mrs. Alvarez that
medications could not be allowed at Fountainhead and school personnel
could not be permitted to administer medications to students because
Fountainhead's insurance company would not permit it. *Id.*, ¶ 21.

Mrs. Alvarez then contacted a teacher named Mary who confirmed that a
child actually had been placed in the janitor's closet during an asthma
attack for a "steam treatment" because the child did not have an inhaler
with him at school. *Id.*, ¶ 22. Mary informed Mrs. Alvarez that, for
those children who require prescription medications during the school
day, a parent would come in and administer the medication. *Id.*

Although concerned about the "no medications" policy, Jeremy's parents
brought him to Fountainhead on November 30, 1998 for his "try-out" day.
*Id.* ¶ 23. They spoke to the teacher who was to be Jeremy's teacher
about the "no medications" policy and whether the ADA applied to Jeremy.
*Id.* As a result of these conversations Mrs. Alvarez began to research
the school's obligations under the ADA. *Id.* ¶ 24. Mrs. Alvarez also
called some local schools and was eventually referred to the
Disabilities Rights Education and Defense Fund ("DREDF"). *Id.* DREDF
provided Mrs. Alvarez with information on the ADA and California Senate
Bill 1663, the new law allowing child care providers to administer
inhalers to children. *Id.*

On December 21, 1998 Mrs. Alvarez faxed Ms. Suan information regarding
Section 504 of the Rehabilitation Act and Title II of the ADA. *Id.,* ¶
25. The next day Ms. Suan called Mrs. Alvarez and informed her that the
statutory sections faxed to her did not apply to Fountainhead because it
is a private school that receives no federal funds. *Id.*, ¶ 26. A few
days later, after again contacting DREDF, Mrs. Alvarez faxed Ms. Suan a
brochure authored by the Child Care Law Center entitled "The ADA and
Childcare." *Id., ¶ 27.* The brochure stated that all child care
centers, whether federally funded or not, are considered public
accommodations under Title III of the ADA. *Id.* The brochure detailed
Title III requirements with regard to centers and included the phone
numbers for DREDF, the Child Care Center, and the Department of
Justice's ADA hotline. *Id.*

After attempting to contact Ms. Suan without success, Mrs. Alvarez, on
January 5, faxed Ms. Suan written materials from the Child Care Law
Center describing California Senate 1663, signed into law on September
21, 1998, allowing child care providers to assist children with inhaled
medications. *Id.*, ¶ 29. On the same day, Mrs. Alvarez, concerned that
Jeremy was going to lose his place at Fountainhead, again called Ms.
Suan and asked whether the school was going to meet its obligations
under the ADA. *Id.*, ¶ 30 Ms. Suan stated that only the Fountainhead
board of directors could change the school's policy and that the Board
meets only when necessary. *Id.* After Mrs. Alvarez' suggestion that
this might be such a time, Ms. Suan informed her that she would speak
with Sarah Cole Zimmerman, founder and president of Fountainhead, and
get back to her. *Id.*

During this same conversation, Ms. Suan stated that the "no medications"
policy was uniformly enforced. *Id.*, ¶ 31. She stated that a child who
used to attend Fountainhead left the school after his parents learned
that he had a bee-sting allergy. *Id.* Because the school policy
prohibited the child from bringing a bee-sting kit to school, his
parents decided to withdraw him from school for fear of his health.
*Id.*

On January 6, Ms. Suan called Mrs. Alvarez and informed her that
Fountainhead's legal counsel had requested a statutory reference showing
that a private school is required to comply with the ADA. *Id.*, ¶ 32.
Mrs. Alvarez provided Ms. Suan with pertinent excerpts of the ADA. *Id.*
On January 7 Ms. Suan again called Mrs. Alvarez. *Id.*, ¶ 33. Ms. Suan
informed Mrs. Alvarez that Ms. Zimmerman stated that the school would
not change its "no medications" policy until it was "forced to do so."
*Id.*

In a subsequent letter faxed to Fountainhead's legal counsel on January
13, Mrs. Alvarez explained that Fountainhead is a public accommodation
within the meaning of Title III of the ADA and her belief that the
school was required to make reasonable modifications to its policies so
as to accommodate people with disabilities. *Id.*, ¶ 34. After numerous
subsequent calls requesting a response from Fountainhead's counsel, she
received a letter restating the school's position that it would not
permit Jeremy to bring his medication to school. *Id.*, ¶ 37. The letter
suggested the Alvarezes either enroll Jeremy in another school, come to
campus to administer Jeremy's medication themselves, or provide a
medically trained individual to do so. *Id.*

The Alvarezes retained counsel. *Id.*, ¶ 38. The Alvarez' counsel wrote
a letter to Fountainhead's counsel containing, among other things: 1) an
analysis of Fountainhead's legal obligations to Jeremy; 2) attached
settlement agreements reached in several similar cases that were brought
by the Department of Justice; 3)offered assistance from the American
Lung Association in training Fountainhead personnel about asthma and the
administration of inhaled asthma medication; 4) an explanation that
Jeremy's doctor supported his admission with the inhaler to
Fountainhead; and 5) that Colleen Richardson, Director of the American
Thoracic Society, the medical section of the American Lung Association,
fully supported Jeremy's case and volunteered to have a representative
visit Fountainhead to explain the disease and its treatment and teach
Fountainhead's teachers, in a few minutes, how to assist Jeremy in using
his inhaler. *Id.*, ¶ 39.

On March 8, Fountainhead responded imposing several conditions and
stating: "Individual health needs are the responsibility of the parent."
*Id.*, ¶ 40. Fountainhead maintained they were providing a reasonable
accommodation to Jeremy by referring him elsewhere. *Id.* Counsel's
letter additionally made several assertions that were in direct conflict
with statements made by school administrators. *Id.*, ¶ 41.

Thus far, Jeremy has missed out on over three (3) months of pre-school.
*Id.*, ¶ 44.

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

A preliminary injunction is proper here if this Court finds that the
plaintiffs have demonstrated either (1) a combination of probable
success on the merits and the possibility of irreparable injury, or (2)
that serious questions of law are raised and the balance of hardships
tips sharply in plaintiffs' favor. *See* [Cadence Design Sys. v. Avant!
Corp.]{.underline}, 125 F.3d 824, 826 (9th Cir.), cert. denied, 118 S.
Ct. 1795 (1998); [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.

A.  JEREMY ALAVAREZ IS LIKELY TO PREVAIL ON HIS ADA CLAIMS.

    1.  **Fountainhead\'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.\"[^4] 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.[^5]

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. 42 U.S.C. §
12182(b)(3); 28 C.F.R. § 36.208.

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.[^6]

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).

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; or modifying a \"no pets\"
rule to allow service animals.[^7] 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.

As Congress recognized, the very reason that the ADA was needed was
because \"business as usual\" deprived persons with disabilities, and
*children with 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, 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]{.underline}, 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 Alvarez' participation in the Fountainhead program does
> not create a fundamental alteration in the program.**

Fountainhead offers educational services and care for children. A
variety of activities are offered by Fountainhead including an academic
curriculum. Plaintiffs have not asked Fountainhead to change its
curriculum or teaching methods in any respect to accommodate Jeremy.
Nothing in the record suggests that Jeremy\'s presence would detract
from the ability of other children to participate fully in the
activities provided by Fountainhead or prevent staff from carrying out
the Fountainhead program.

Fountainhead is not being asked to change the basic nature of its
services. For instance, Fountainhead has not been asked to provide
medical care for Jeremy, in which case it could have argued that its
program had been fundamentally altered from education and child-care to
pediatric medicine.

Requiring Jeremy's teachers to be trained - in less than one hour by a
trained professional from the American Lung Association - to supervise
Jeremy's use of an inhaler would in no way alter the basic function of
these teachers. Fountainhead's teachers have not been asked to engage in
a function that is wholly different from those already performed. As
part of their daily duties teachers maintain custodial supervision over
children. As part of this routine, teachers watch for such common
occurrences as a cut knee, a child who has soiled clothing, a child who
is vomiting, a child with a rash or with a fever, or one who is not
feeling well in some other way. The teachers have been trained to notice
these types of common ailments. Keeping any eye out for these ailments
and their symptoms is no different than keeping an eye out for Jeremy
and the symptoms, such as heavy breathing, he will exhibit during an
asthma attack. In such an instance, the simple process of handing Jeremy
his inhaler, watching Jeremy administer a dose of medication, and then
taking the inhaler back from Jeremy is not out of the scope of Jeremy's
teachers' other custodial duties, such as wiping a child's mouth or
helping with a change of clothes and thus does not create a fundamental
alteration in Fountainhead's program.

> 3\. Fountainhead cannot assert that it is not permitted to require its
> teachers to be trained to supervise Jeremy's use of an inhaler due to
> its employment contracts with the teachers.

Fountainhead maintains that it cannot require its teachers to undergo
training of less than one hour - provided free by qualified personnel
from the American Lung Association - due to limitations imposed by the
employment contracts of these teachers. *See* Overson Decl. Exh. H.
Fountainhead asserts that such training would violate the employment
contracts with its teachers and is "not justified by any public policy
issue." *Id.* Fountainhead cannot hide behind the employment contracts
that it created in order to avoid ADA liability. First, the Title III
regulations promulgated by the Department of Justice under the ADA make
clear that public accommodations such as Fountainhead cannot contract
away their Title III obligations. 28 C.F.R. § 36.102(a)(1).

Second, Fountainhead's claim that it cannot comply with a federal civil
rights statute because its employment contracts forbid it to do so is
patently invalid. "A contract to do an act forbidden by law is void and
cannot be enforced in a court of justice" [Tiffany v. Boatman's
Institution]{.underline}, 85 U.S. 375, 385 21 L. Ed 868 (1873).
"\[C\]ourts should not recognize contracts that violate law or public
policy. [United Paperworkers Int'l Union v. Misco, Inc.]{.underline},
484 U.S. 29, 108 S.Ct. 364, 373, 98 L.Ed.2d 286 (1987). "The bottom line
is that courts should not enforce a contract that violates some explicit
public policy." [Hurd v. Hodge]{.underline}, 334 U.S. 24, 35, 68 S.Ct.
847, 853, 92 L.Ed. 1187 (1948). The plaintiff correctly makes the point
that if an employment contract states that employees need only serve
caucasians, such a limitation would obviously fail. Overson Decl. Exh.
I.

Finally, contrary to Fountainhead's assertion, public policy does in
fact justify that its teachers be trained to supervise Jeremy's use of
his inhaler. Congress clearly sought to formulate a strong public policy
in favor of equal opportunities for people with disabilities through the
passage of the ADA.

> **B. [LYNN AND JOSE ALVAREZ ARE LIKELY TO PREVAIL ON THEIR CLAIM OF
> DISCRIMINATION ON THE BASIS OF ASSOCIATION.]{.underline}**

Jeremy\'s parents allege that they are being denied educational 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 pre-school program offered by Fountainhead is
as much a service to parents as it is to children. Pre-school allows
parents to work without having to leave their children unattended. This
is especially so due to the fact that Fountainhead is located close
enough to Jeremy's grandparents that they plan to pick him up after
school in order to allow Jeremy's parents to work full time. Complaint ¶
16. Fountainhead\'s program is routinely available to the parents of
non-disabled children, and, if it is allowed to deny enrollment to
Jeremy, this service will be denied to his parents. Lynn Alvarez has
stated that she decided upon Fountainhead in part because it was near
Jeremy's grandparents. Alvarez Decl. ¶ 7. This factor was necessary
because the Alvarezes could only afford a part-time program. *Id.* It is
logical to assume that Lynn or Jose Alvarez would therefore have to quit
working full-time if Fountainhead is allowed enforce its "no
medications" policy in regard to Jeremy.[^8]

In fact, if this Court were to countenance Jeremy\'s continued
exclusion, it is likely that some child care providers who currently
accept children with similar disabilities and similar needs 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
    Fountainhead is allowed to continue to exclude Jeremy from its
    educational program.

Jeremy is losing valuable time in his education for every day that he
misses pre-school. Plaintiff presents an extensive list of studies and
cases recognizing that children who do not attend pre-school are
disadvantaged in relation to those who do. Plaintiffs' Motion for
Preliminary Injunction and Memorandum of Points and Authorities in
Support Thereof, ¶ III, (C).

Additionally, at this time Jeremy's parents have no other school to
which they can send Jeremy and continue to work. Alvarez Decl. ¶¶ 7, 34.
This school's proximity to Jeremy's grandparents allows them to pick him
up after school and care for him until the Alvarezes finish their
workday. *Id.,* ¶ 7. Thus, the Alvarez family will suffer substantial
financial harm in order to send Jeremy to another pre-school.

1.  **Fountainhead will not suffer irreparable injury if the Court
    enjoins it from expelling Jeremy.**

The only harm Fountainhead alleges it may suffer if Jeremy is allowed to
attend the pre-school with his inhaler is that it might be liable if
Jeremy hurts himself in some way while taking his medication.[^9]
Overson Decl. Exh. C, F, H, J, O, Q, T. Fountainhead's argument that it
is exposed to increased liability in supervising Jeremy's use of an
inhaler is invalid. Fountainhead does not provide facts to support its
claim that allowing a teacher to supervise Jeremy's inhaler use might
result in harm to Jeremy for which it would be held liable.
Fountainhead's defense is based on speculation and conjecture, and
should be rejected.

> **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
educators 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 disabilities who
are often forced to forego full-time work in order to care for their
children. [See]{.underline} [supra]{.underline} at n. 8. 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 Alavarezes is to forego
employment so as to care for their children. 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.\").

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. [Cadence Design Sys. v. Avant!
Corp.]{.underline}, 125 F.3d 824, 826 (9th Cir.), cert. denied, 118 S.
Ct. 1795 (1998), [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 excluded from Fountainhead. Moreover, public
policy weighs heavily in favor of sending child education institutions 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 non-disabled children.

///

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

The Court should enjoin Fountainhead from enforcing its "no medications"
policy and should require the Fountainhead teachers responsible for
Jeremy to undergo training adequate to supervise his use of an inhaler.

> Respectfully submitted,
>
> Bill Lann Lee,
>
> Acting Assistant Attorney
>
> General for Civil Rights
>
> By: [                      ]{.underline}
>
> JOHN L. WODATCH, Chief
>
> RENEE M. WOHLENHAUS, Deputy Chief
>
> PHILIP L. BREEN, Special Legal Counsel
>
> RYAN E. WARREN, Trial Attorney
>
> U.S. Department of Justice
>
> Civil Rights Division
>
> Disability Rights Section
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> Tel: (202) 307-0663
>
> Dated: Washington, D.C.
>
> April \_\_\_\_th, 1999

[^1]: ^?^ Although Plaintiffs seek 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}
    [Bragdon v. Abbott]{.underline}*,* 524 U.S. 624, 141 L. Ed. 2d 540,
    562 (1998); [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. "As the agency directed by Congress to issue
    implementing regulations\...and to enforce Title III in court, the
    Department's views are entitled to deference." [Bragdon v.
    Abbott]{.underline}*,* 524 U.S. 624, 141 L. Ed. 2d 540, 562 (1998).
    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 Department's [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
    Plaintiff, attached to the Plaintiffs\' Motion for Preliminary
    Injunction.

[^4]: ^?^ There is no dispute that Fountainhead 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 ¶¶ 1, 9. Nor does
    Fountainhead contest that Jeremy is a person with a disability, 42
    U.S.C. § 12101(2); 28 C.F.R. § 36.104 (def. of disability). In fact,
    they implicitly admit that Jeremy qualifies for coverage under the
    ADA. Declaration of Wesley E. Overson in Support of Plaintiff's
    Motion for Preliminary Injunction ("Overson Decl."), Exh. C, H, O,
    F, J, Q, T (in which counsel for Fountainhead uses language from the
    ADA to outline its views of its efforts to comply with the ADA).
    Fountainhead also does not dispute that its decision to exclude
    Jeremy affects his parents, 42 U.S.C. § 12182(b)(1)(E); 28 C.F.R. §
    36.205. Complaint at ¶ 16, 44-45.

[^5]: ^?^ The reasonable modification provision should be construed so
    that it is consistent with the \"full and equal enjoyment\" mandate
    underlying the more general section of the Title III regulation.
    [See]{.underline} [Technical Assistance Manual]{.underline} at §
    III-3.1000.

[^6]: ^?^ 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). [Bragdon v. Abbott]{.underline}*,*
    524 U.S. 624, 141 L. Ed. 2d 540, 562 (1998). (Upholding summary
    judgment on the issue of disability in favor of a patient who had
    HIV against her dentist after he refused to treat her.).

[^7]: ^?^ [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.

[^8]: ^?^ According to a 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.

[^9]: For some time, Fountainhead also asserted that its insurance
    policy would not permit Jeremy to bring any medications on school
    grounds. Complaint ¶ 21. However, Fountainhead, presumably realizing
    such an excuse is invalid under the ADA, has renounced this
    position. *See* Overson Decl. Exh. C.