1  CYNTHIA J. LARSEN (State Bar No. 123994)
   TIMOTHY J. LONG (State Bar No. 137591)
2  JENNIFER P. BROWN (State Bar No. 173439)
   ORRICK, HERRINGTON & SUTCLIFFE
3  400 Capitol Mall, Suite 3000
   Sacramento, California 95814-4407
4  Telephone: (916) 447-9200
5  ARLENE B. MAYERSON (State Bar No. 7931 ILLEGIBLE
   DIANE J. LIPTON (State Bar No. 120836)
6  DISABILITY RIGHTS EDUCATION AND DEFENS:
   2212 Sixth Street
7  Berkeley, California 94710
   Telephone: (510) 644-2555
8
   Attorneys for Plaintiffs
9
   GIL A. ABRAMSON
10 ANDREW C. TOPPING
   HOGAN & HARTSON LLP.
11 111 S. Calvert Street, Suite 1600
12 Telephone (410) 659-2700
13 Attorneys for Defendant
14                      UNITED STATES DISTRICT COURT
15                      EASTERN DISTRICT OF CALIFORNIA
16
17 SHERRY ORR; WILLIAM ORR; and         )       No. CV-S-95-507 EJG GGH
   JEREMY ORR, a minor, through         )
18 his guardian ad litem Elaine         )       JOINT APPLICATION FOR APPROVAL
   Huffstutler,                         )       OF CONSENT DECREE, PROPOSED
19                                      )       SETTLEMENT AND VOLUNTARY
                Plaintiffs,             )       DISMISSAL WITH PREJUDICE
20                                      )
        v.                              )       Date: September 22, 1995
21                                      )       Time: 9:00 a.m.
                                        )       Courtroom: Judge Edward J.
22 KINDERCARE LEARNING CENTERS,         )       Garcia
   INC.,                                )
23                                      )
                Defendant.              )
24                                      )
25      Pursuant to Federal Rule of Civil Procedure Section
26 41(a)(2) and Local Rule 202, Plaintiffs Sherry Orr, William Orr
27 and Jeremy Orr, a minor child, by and through his guardian ad
28 litem (collectively "Plaintiffs"), and Defendant KinderCare
1  Learning Centers, Inc. ("KinderCare") hereby submit this Joint
2  Application for Approval of Consent Decree, Proposed Settlement
3  and Voluntary Dismissal With Prejudice (the "Application").
4                                       I.
5                                  INTRODUCTION
6       The Court is familiar with the facts underlying the
7  Plaintiffs' claims in this case. Briefly, Jeremy Orr ("Jeremy"),
8  a ten-year-old boy with tuberous sclerosis, has attended
9  KinderCare's Elk Grove center since September 1994. In February
10 1995, KinderCare gave William and Sherry Orr 30 days notice of
11 KinderCare's intent to disenroll Jeremy from its after-school
12 program on the grounds that KinderCare could not meet Jeremy's
13 individualized needs in a group-care setting. On March 16, 1995,
14 Jeremy and his parents filed a complaint against KinderCare
15 alleging discrimination under Title III of the Americans With
16 Disabilities Act ("ADA") and two state law statutes, California
17 Civil Code sections 51 and 54.1, as well as a motion for a
18 preliminary injunction. On June 2, 1995, this Court granted, in
19 part, Plaintiffs' motion for a preliminary injunction and
20 KinderCare was ordered to retain Jeremy at its Elk Grove center
21 pending the resolution of the merits of the case.
22      Approximately seven weeks ago, the parties entered into
23 settlement negotiations. By virtue of these negotiations, the
24 parties reached an agreement as to the terms of the settlement on
25 September 6, 1995. This Application sets forth the terms of the
26 Consent Decree and Settlement Agreement agreed to by the parties
27 and discusses the matters required by Local Rule 202(b) and (c).
28 ///
2
1                                       II.
2                THE TERMS OF THE SETTLEMENT AGREEMENT, CONSENT
                          DECREE AND DISMISSAL ORDER
3
4       The non-confidential terms of the Settlement Agreement
5  signed by the parties is attached hereto as Exhibit A. Because
6  certain terms of the Settlement Agreement are confidential, they are
7  being submitted to the Court under seal and attached hereto as
8  Exhibit B. The Consent Decree, which incorporates relevant portions
9  of the Settlement Agreement, is attached hereto as Exhibit C.
10 Finally, a proposed Order granting this Application and dismissing the
11 case with prejudice pursuant to Federal Rule of Civil Procedure
12 41(a)(2) is attached hereto as Exhibit D.1 As part of the
13 settlement, the parties request that the Court retain jurisdiction in
14 order to enforce provisions of the Consent Decree. See Kokkonen v.
15 Guardian Life Ins. Co., 114 S. Ct. 1673 (1994); Hagestad v. Tragesser
16 49 F.3d 1430 (9th Cir. 1995).
17                                     III.
18               MATTERS TO BE DISCLOSED PURSUANT TO LOCAL RULE 202
19      A.      The Age and Sex of the Minor
20              Jeremy is a nine-year-old boy.
21      B.      The Nature of the Causes of Action to Be Settled
22      The complaint Jeremy and his parents filed against
23 KinderCare contains causes of action under Title III of the ADA
24 and sections 51 and 54.1 of the California Civil Code.
25 ///
26 ///
27
28 1    Exhibits C and D are also being submitted to the Court in
                                        3
1       C.      Circumstances Out of Which the Causes of Action Arose
2               Jeremy is a nine-year-old boy who suffers from tuberous
3  sclerosis, a developmental disability which causes mental
4  retardation, low vision and mild seizures.2 Jeremy needs
5  assistance eating, walking and interacting with other persons.
6  In addition, he cannot talk and is not toilet-trained. Since
7  both of Jeremy's parents work full time, he needs care during and
8  after school. During school hours, between 8:30 a.m. and 2:30
9  p.m., Jeremy attends a special education program at an Elk Grove
10 elementary school. In September 1994, Jeremy's parents enrolled
11 Jeremy in the after-school daycare program at KinderCare Elk
12 Grove for approximately three hours per day, from 2:30 p.m. to
13 5:30 p.m. Since he was enrolled in KinderCare in September 1994,
14 Jeremy has been placed in the two-year-old room.
15              KinderCare Learning Centers, Inc. is a provider of
16 daycare services, with 1200 locations throughout the United
17 States. The centers located in California are licensed by the
18 State of California. KinderCare provides part-time and full-time
19 daycare programs in a group setting for children aged six weeks
20 through five years. In addition, KinderCare offers an after-
21 school daycare program, also in a group setting, for children
22 aged five years through twelve years attending local elementary
23 schools.
24              While no aide or additional staff member was sought by
25 or offered to Jeremy as a condition of his enrollment, Jeremy's
26
27 2    This recitation of the circumstances out of which the causes
   of action arose is taken in large part from the Court's
28 Memorandum Opinion and Order issued on June 9, 1995.
                                        4
1  parents initiated discussions with KinderCare and Alta California
2  Regional Center ("Alta") to explore the possibility of providing
3  an aide at state expense to attend the KinderCare program with
4  Jeremy. The aide would change Jeremy's diapers and generally
5  assist him as needed to facilitate his participation in the
6  program. At all times Alta has been willing and able to either
7  reimburse KinderCare for the cost of an aide hired by KinderCare
8  to assist Jeremy, or provide an aide at no cost to KinderCare
9  through a contract with the United Cerebral Palsy Association.
10              On February 17, 1995, KinderCare gave the Orrs 30 days
11 notice of KinderCare's intent to disenroll Jeremy from the
12 program on the grounds that KinderCare could not meet Jeremy's
13 individualized needs in a group care setting.
14      D.      Manner in Which Compromise Amount Was Determined
15              The parties entered into settlement negotiations
16 approximately seven weeks ago. As a result of these
17 negotiations, Plaintiffs obtained portions of the nonmonetary
18 relief sought in their Complaint against KinderCare. In
19 addition, KinderCare agreed to pay Plaintiffs a monetary sum
20 which the parties have agreed to keep confidential.3 Plaintiffs
21 will place the proceeds of the settlement in a custodial account
22 or accounts to be used for the benefit of Jeremy.
23      E.      Employment of Plaintiffs' Counsel
24      The Plaintiffs retained two law firms to litigate this
25 matter: Disability Rights and Education Defense Fund and Orrick,
26 Herrington & Sutcliffe. Plaintiffs' counsel has no relationship
27
28 3    The monetary settlement is set forth in detail in Exhibit B.
                                        5
1  with KinderCare's counsel. Pursuant to the parties' Settlement
2  Agreement, Plaintiffs' counsel will receive attorneys' fees and
3  costs in amounts set forth in Exhibit B. Plaintiffs' counsel
4  will not receive either of these amounts until the Court has
5  approved the parties' settlement.
6                                      III.
7                                   CONCLUSION
8               The parties believe that the terms of the settlement
9  are fair and equitable and in the best interests of all
10 concerned, including Jeremy. The parties respectfully request
11 that the Court approve this settlement on the terms set forth in
12 the accompanying documents.
13 Dated: September 8, 1995             CYNTHIA J. LARSEN
                                        TIMOTHY J. LONG
14                                      JENNIFER P. BROWN
                                        ORRICK, HERRINGTON & SUTCLIFFE
15
16                                      By
                                                Cynthia J. Larsen
17                                          Attorneys for Plaintiffs
18
   Dated: September 8, 1995             ARLENE B. MAYERSON
19                                      DIANE J. LIPTON
                                        DISABILITY RIGHTS EDUCATION
20                                        AND DEFENSE FUND, INC.
21
                                        By
22                                              Arlene Mayerson
                                            Attorneys for Plaintiffs
23
24 Dated: September 11, 1995            GIL A. ABRAMSON
                                        ANDREW C. TOPPING
25                                      HOGAN & HARTSON LLP.
26
                                        By
27                                             Gil A. Abramson
                                           Attorneys for Defendant
28
                                        6
        SETTLEMENT AGREEMENT AND MUTUAL RELEASE
        This Settlement Agreement and Mutual Release ("Agreement") is
made by and between KinderCare Learning Centers, Inc. ("KinderCare") and
Sherry A. Orr, William Orr and Jeremy Orr, a minor, through his guardian ad 
litem Elaine Huffstutler (collectively "the Orrs").
        WHEREAS, KinderCare and the Orrs desire to fully resolve the
pending action styled Sherry A. Orr, William Orr and Jeremy Orr, a minor, 
through his guardian ad litem Elaine Huffstutler v. KinderCare Learning 
Centers, Inc., Civil Action No. S-95-507 EJG/GGH, filed in the United States 
District Court for the Eastern District of California, in full and complete 
accord and satisfaction of this action and all matters relating to the subject 
matter thereof.
        NOW, THEREFORE, for and in consideration of the mutual promises and
releases as set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, KinderCare and the 
Orrs agree as follows:
        1.      Jeremy Orr will be allowed to attend and receive child care in
KinderCare's after-school program until he has reached the upper-age limit for
which KinderCare provides care for any child, which is currently the
completion  of twelve years of age, and, during that time period, he will be
included in KinderCare's activities as required by Paragraph 3 of Judge Edward
J. Garcia's Order dated June 9, 1995, which provides: "KinderCare shall make
available to Jeremy Orr, to the extent practicable, all opportunities that are
made available  to other children attending the after school daycare program
at the Elk Grove  center."  It is understood that Jeremy Orr will comply with
KinderCare's rules  and that he will have the same rights as other children at
KinderCare except  that Jeremy has the rights provided by the Americans With
Disabilities Act  ("ADA") and Sections 51 

and 54.1 of the California Civil Code or regulations or 
law thereunder and as provided herein.
        2.      Jeremy Orr will be allowed to attend KinderCare not only after
school but also during school breaks, holidays, vacations, minimum days, or at 
any other time when his regular special education classroom is not open during 
school hours.
        3.      Jeremy Orr will be permitted to attend KinderCare with a
personal assistant not funded by KinderCare provided that an agreement with
KinderCare is in place with any agency providing a personal assistant (or in 
lieu of said agreement, a Certificate of Insurance provided by said agency is 
provided to KinderCare) that said agency will provide liability insurance in
the  amount of $1,000,000 (or for the same amount as the general liability
coverage  maintained by KinderCare, whichever is lower) to indemnify
KinderCare for  liability to third parties in connection with the personal
assistant (in the  event that such agency ceases to provide the coverage
specified in this paragraph, the Orrs agree to  arrange with such agency
providing a personal assistant that the agency shall  notify the Orrs if and
when the amount of insurance coverage is below the amount  specified in this
paragraph and to inform KinderCare expeditiously in writing of  such
notification by such agency, and KinderCare will determine fairly,  reasonably
and in good faith whether such insurance is sufficient for the  purposes of
this provision), that the personal assistant meets all applicable  state
standards for care of a child by a person providing the type of service  that
the personal assistant will provide to Jeremy, that the personal assistant 
will not be an employee or independent contractor of KinderCare, and that the 
personal assistant will be subject to the overall supervision of KinderCare 
while he or she is present at KinderCare with Jeremy as Jeremy's personal 
assistant. If KinderCare receives a notice of Noncompliance or a notice that
an Accusation or any written notice or document 
                                      - 2 -
having a similar legal effect will be issued by the licensing or similar 
authorities in connection with the presence or conduct of the personal 
assistant, the parties agree that the Orrs will provide a different personal 
assistant until the problem is resolved or, if they do not, that Jeremy Orr 
will attend without a personal assistant.  It is understood that applicable 
licensing ratio requirements will be met by KinderCare independent of the 
presence of the personal assistant. It is also understood that KinderCare will 
not be required to make programmatic changes on account of the personal 
assistant's presence except as the ADA and Sections 51 and 54.1 of the 
California Civil Code may require with respect to persons with disabilities,
and  that the personal assistant will function as Jeremy's personal assistant
and  will not be permitted or required to provide any services to other
children.
        4.      Following the entry of the Consent Decree, William and Sherry
Orr and KinderCare/Elk Grove will have a meeting, which shall occur as
expeditiously as possible, to discuss the personal assistant's presence and 
services, and Jeremy Orr will then be permitted to attend KinderCare in the 
6-12 room during such hours as that room is in session. For hours that the
6-12  room is not in session, Jeremy Orr may attend in another classroom. It
is  understood that Jeremy Orr will be required to attend the 6-12 room with a 
personal assistant for the first 45 days only. Jeremy Orr may at any time he
is at KinderCare attend the two year old room without a personal assistant.
The  parties agree that KinderCare will not insist as a condition of Jeremy's 
attendance at KinderCare that Jeremy attend KinderCare with a personal 
assistant. The Orrs understand that, if Jeremy does not attend the 6-12 room 
with a personal assistant, KinderCare has not undertaken to involve him in
6-12  room activities as fully as he would be involved with a personal
assistant.
                                      - 3 -
        5.      KinderCare and the Orrs will have meetings no less than
monthly to discuss Jeremy's participation at KinderCare, which may, at the
Orrs' option, be attended by an inclusion specialist. KinderCare will permit
an  individual designated by the Orrs and trained in integrating special needs 
children to observe Jeremy upon reasonable notice prior to each such visit at 
KinderCare and to provide advice to KinderCare management in integrating
Jeremy  at the meetings referenced in this paragraph. It is understood that
such visits  will be planned so as not to be unreasonably intrusive to
KinderCare.
        6.      KinderCare agrees to discontinue policies, practices and
procedures inconsistent with the terms hereof or involving special enrollment
requirements for the enrollment of children with disabilities at its Elk Grove 
facility and has certified that each of its Elk Grove staff has read The ADA
and KinderCare.
        7.      The parties agree to file with the United States District
Court for the Eastern District of California a Consent Decree which shall
incorporate Paragraphs 1 through 6 herein and shall do so jointly upon the
execution of this Agreement. KinderCare will be given the opportunity to
participate in all court proceedings in connection with the approval of the
Consent Decree and any  minor's settlement and each party shall notify the
other twenty-four (24) hours  in advance of any other court filing in
connection with the approval of the  Consent Decree and any minor's
settlement. In the Consent Decree to be filed  with the Court, the parties
will request the Court to enter the Consent Decree  as a decree and Order of
the Court enforceable, inter alia, through the contempt  powers of the Court,
and further request that the Court retain continuing  jurisdiction to enforce
the terms of the Consent Decree subsequent to dismissal  of the pending
action. The parties agree that the Consent Decree will terminate  upon the
earlier of Jeremy Orr reaching the upper-age limit for attendance at 
KinderCare, which is currently the 
                                      - 4 -
completion of twelve years of age, or if Jeremy's attendance at KinderCare 
ceases, except that if any such cessation is temporary, the Consent Decree
will  not terminate. If William and Sherry Orr consider a cessation in
attendance to  be temporary, they must advise KinderCare of such in writing
and KinderCare will  be bound by such notice.
        8.      It is understood and agreed that KinderCare has and continues
to deny any and all liability with respect to the allegations made in the 
Complaint and that nothing in this Agreement, including the payment of any
sums  by KinderCare, constitutes an admission by KinderCare of any such
wrongdoing, or liability, or otherwise constitutes a violation of the ADA or
Sections 51 or  54.1 of the California Civil Code.
        9.      The provisions of this paragraph are confidential and have
been filed with the Court under seal as Exhibit B to the Joint Application for 
Approval of Consent Decree, Proposed Settlement and Voluntary Dismissal With 
Prejudice ("Joint Application").
        10.     The provisions of this paragraph are confidential and have
been filed with the Court under seal as Exhibit B to the Joint Application.
        11.     The provisions of this paragraph are confidential and have
been filed with the Court under seal as Exhibit B to the Joint Application.
        12.     This Agreement shall constitute, and in executing this
Agreement the parties hereby enter into, a full release as to any and all 
claims, including cross-claims or third-party claims, as to any and all
events,  actions, or matters that were or could have been raised in the
above-referenced  action Sherry A. Orr, William Orr and Jeremy Orr, a minor,
through his guardian  ad litem Elaine Huffstutler v. KinderCare Learning
Centers, Inc., as well as  all other disputes or controversies arising from
any and all transactions or  relationships between or among them, occurring
through the date of this  Agreement, and except 
                                      - 5 -
as to the rights and obligations created by the Agreement, the parties hereby 
fully and forever release and discharge each other, their parents,
subsidiaries, successors, predecessors, affiliates, agents, directors,
trustees, officers,  employees, members, attorneys and assigns, both past and
present, from all  claims, causes of action, losses, liabilities, and demands
of any kind  whatsoever, whether or not accrued, whether contingent or
otherwise, whether  liquidated or unliquidated, and whether known or unknown.
Each party is aware  that it may hereafter discover claims or facts in
addition to or different from  those it now knows or believes to be true with
respect to the other parties to  this Agreement. Nevertheless, it is the
intention of the parties to fully,  finally, and forever settle and release
all matters relating to each other, and   all claims related thereto, which do
now exist or may heretofore have existed  between them. In furtherance of such
intention, the releases given herein shall  be and shall remain in effect as
full and complete releases of all such matters  notwithstanding the discovery
or existence of any additional or different claims  or facts related thereto.
        13.     Simultaneous with the execution of this Agreement, the Orrs
agree to file with the United States District Court for the Eastern District
of California, a Stipulation for Voluntary Dismissal with Prejudice of all of
their claims raised in the litigation styled Sherry A. Orr, William Orr and
Jeremy  Orr, a minor, through his guardian ad litem Elaine Huffstutler v.
KinderCare  Learning Centers, Inc.
        14.     The Orrs agree to maintain on a confidential basis the
monetary amounts set forth in the paragraphs numbered 9, 10 and 11 in Exhibit
B to the Joint Application; provided, however, that the amounts set forth in
Exhibit B to  the Joint Application may be disclosed in settlement
negotiations in other cases  in which Orrick, Herrington & Sutcliffe and/or
the Disability Rights Education Defense Fund (hereinafter "DREDF") are counsel
of record. Orrick, Herrington &
                                     - 6 -
Sutcliffe and DREDF agree to request, but cannot require, that counsel
receiving such information maintain its confidentiality. The parties further
agree that if  the United States District Court for the Eastern District of
California requires  filing of this Agreement, that monetary amounts set forth
in the paragraphs  numbered 9, 10 and 11 in Exhibit B will be filed with the
Court under seal.
        15.     The persons executing this Agreement represent and warrant
that they are duly and validly authorized to do so, and that all requisite 
corporate action has been obtained and that no further action is necessary to 
make this Agreement and all transactions contemplated hereby valid and binding 
upon each of the parties hereto in accordance with the terms hereof.
        16.     This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors and assigns.
        17.     This Agreement is, and is intended by the parties to be, an
integrated agreement, setting forth all of the promises, undertakings,
understandings, and warranties that have been made with respect to the matters 
to which reference is made above or below. There are no other promises,
understandings, or warranties by or between the parties relating to any of
these matters. No representation or promise pertaining to this Agreement, or
the subject matter thereof, shall be binding upon any of the parties hereto
except as expressly provided herein.
        18.     Each party has received independent legal advice from its
attorneys with respect to the advisability of making the settlement provided
for herein and with respect to the advisability of executing this Agreement.
        19.     Except as expressly provided in this Agreement, no party (nor
any officer, agent, employee, representative or attorney of or for any party) 
has made any statement or representation to any other party regarding any fact 
relied upon in entering into this Agreement, and each party does not rely upon 
any 
                                     - 7 -
statement, representation or promise of any other party (or any officer,
agent, employee, representative or attorney of or for any other party) in
executing  this Agreement or in making the settlement provided for herein.
        20.     Each party to this Agreement has made such investigation of
the facts pertaining to this Agreement and of all the matters pertaining
hereto,  as it deems necessary.
        21.     Each party or representative has read this Agreement and
understands the contents hereof.
        22.     Each party represents and warrants that this Agreement is
entered into in good faith and will be performed in all respects in good
faith.
        23.     This Agreement may be executed in duplicate counterparts.
        24.     This Agreement shall become effective and shall be binding
upon the parties hereto only upon complete execution of the Agreement.
        25.     The parties shall execute any further additional instruments
and they shall perform any acts which may become necessary in order to 
effectuate and carry out the purposes of this Agreement.
        26.     The provisions of this Agreement are severable. If any
provision of this Agreement is deemed overbroad by a tribunal of competent
jurisdiction,  such provision shall be narrowed by the tribunal as necessary
for the provision  to become enforceable and complied with applicable law. If
any provision of this  Agreement is found to be invalid, illegal, void or
unenforceable, such provision  will be regarded as stricken from the Agreement
and will not affect the  validity of enforceability of the remainder of the
Agreement.
        27.     This Agreement shall be interpreted in accordance with the
laws of the State of California, exclusive of its choice of law provisions.
                                      - 8 -
        IN WITNESS WHEREOF, the parties have executed this Settlement
Agreement and Mutual Release as of the date(s) set forth below.
KINDERCARE LEARNING CENTERS, INC.  SHERRY A. ORR
By:
Title:                                  Date: 9/8/95
Date:
WILLIAM ORR                             JEREMY ORR, a minor, through
                                        his guardian ad litem Elaine
                                        Huffstutler
Date: 9/8/95                            Date: 9-8-95
                                     - 9 -
        IN WITNESS WHEREOF, the parties have executed this Settlement
Agreement and Mutual Release as of the date(s) set forth below.
KINDERCARE LEARNING CENTERS, INC.  SHERRY A. ORR
By:
Title:                                  Date:
Date:
WILLIAM ORR                             JEREMY ORR, a minor, through
                                        his guardian ad litem Elaine
                                        Huffstutler
Date:                                   Date:
                                     - 9 -
1                                  EXHIBIT B
2
3
4
5
6            PARAGRAPHS 9, 10 AND 11 OF THE SETTLEMENT AGREEMENT
                AND MUTUAL RELEASE ARE BEING FILED SEPARATELY
7                         WITH THE COURT UNDER SEAL.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1  CYNTHIA J. LARSEN (State Bar No. 123994)
   TIMOTHY J. LONG (State Bar No. 137591)
2  JENNIFER P. BROWN (State Bar No. 173439)
   ORRICK, HERRINGTON & SUTCLIFFE
3  400 Capitol Mall, Suite 3000
   Sacramento, California 95814-4407
4  Telephone: (916) 447-9200
5  ARLENE B. MAYERSON (State Bar No. 79310)
   DIANE J. LIPTON (State Bar No. 120836)
6  DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
   2212 Sixth Street
7  Berkeley, California 94710
   Telephone: (510) 644-2555
8
   Attorneys for Plaintiffs
9
   GIL A. ABRAMSON
10 ANDREW C. TOPPING
   HOGAN & HARTSON LLP.
11 111 S. Calvert Street, Suite 1600
   Baltimore, Maryland 21202
12 Telephone: (410) 659-2700
13
   Attorneys for Defendant
14
15                      UNITED STATES DISTRICT COURT
16                      EASTERN DISTRICT OF CALIFORNIA
17
18 SHERRY ORR; WILLIAM ORR; and         )       No. CV-S-95-507 EJG GGH
   JEREMY ORR, a minor, through         )
19 his guardian ad litem Elaine         )       
   Huffstutler,                         )       CONSENT DECREE
20                                      )
                Plaintiffs,             )
21      v.                              )
                                        )
22 KINDERCARE LEARNING CENTERS,         )
   INC.,                                )
23                                      )
                Defendant.              )
24                                      )
25 ///
26 ///
27 ///
28 ///
1                                       I.
2                                  INTRODUCTION
3       A.      Nature of Action
4               1.      Plaintiffs Sherry Orr, William Orr and Elaine
5  Huffstutler (collectively "Plaintiffs") commenced this action,
6  Sherry Orr, William Orr, and Jeremy Orr, a minor, through his
7  guardian ad litem Elaine Huffstutler v. KinderCare Learning
8  Centers, Inc., CV-S-95-507, against KinderCare Learning Centers,
9  Inc. ("KinderCare") based on alleged discriminatory treatment of
10 Jeremy Orr in KinderCare's Elk Grove, California facility
11 ("KinderCare Elk Grove"). In their Complaint, Plaintiffs allege
12 that KinderCare has discriminated against Jeremy Orr and his
13 parents on the basis of his disability.
14      B.      Jurisdiction
15              2.      This Court has jurisdiction over the parties and
16 the subject matter in this action pursuant to 28 U.S.C. S 1331 and
17 42 U.S.C S 12188 for the claims involving the Americans With
18 Disabilities Act of 1990 (the "ADA"). This Court has
19 supplemental jurisdiction over the Plaintiffs' state law claims
20 pursuant to 28 U.S.C. S 1367. The Court retains jurisdiction
21 over the parties and this action for the duration of this Consent
22 Decree, and for entry of such orders as may be necessary to
23 enforce the provisions of the Consent Decree and to carry out the
24 purpose and intent of the parties' agreement as memorialized by
25 the Consent Decree. The parties expressly consent to the Court
26 retaining jurisdiction following dismissal for these purposes.
27 Violations of the Consent Decree may be enforced through, inter
28 alia, the contempt power's of this Court. The Complaint states
                                        2
1  claims which, if proven, could authorize the Court to grant
2  relief against KinderCare under the ADA and the state law claims.
3       C.      Purposes of the Consent Decree
4               3.      The Plaintiffs and KinderCare have concluded,
5  after considering the risks involved in further litigation and
6  the likelihood that the litigation, if not settled now, will be
7  protracted and expensive, that it would be desirable and in the
8  parties' best interests to settle this action in the manner and
9  upon the terms set forth below.
10              4.      The Plaintiffs have entered into this Consent
11 Decree for the following purposes:
12                      a.      To provide appropriate injunctive and
13 monetary relief with finality for the Plaintiffs regarding
14 disability discrimination; and
15                      b.      To further promote Jeremy Orr's participation
16 in the after-school program at KinderCare Elk Grove.
17                                      II.
18                        NON-ADMISSION/NON-DETERMINATION
19              5.      The Court has made no findings concerning
20 KinderCare's alleged violations of the ADA or sections 51 or 54.1
21 of the California Civil Code.
22              6.      By agreeing to and voluntarily entering into this
23 Consent Decree, there is no admission or concession by the
24 Plaintiffs or KinderCare, express or implied, that KinderCare has
25 in any way violated the ADA or sections 51 or 54.1 of the
26 California Civil Code and nothing in this Consent Decree,
27 including the payment of any sums by KinderCare, constitutes an
28 admission by KinderCare of any wrongdoing or liability or
3
1  violation of the ADA or sections 51 or 54.1 of the California
2  Civil Code. This Consent Decree does not contain, and will not
3  be interpreted or construed as containing, any such admission.
4                                     III.
5                  EFFECTIVE DATE AND DURATION OF CONSENT DECREE
6               7.      The terms of this Consent Decree will become
7  effective immediately upon its final approval, without
8  modification, by the Court. This Consent Decree will be
9  effective and binding on the parties, as well as to each of the
10 parties' successors or assigns, until the earlier of Jeremy Orr
11 reaching the upper-age limit for attendance at KinderCare, which
12 is currently the completion of twelve years of age, or if Jeremy
13 Orr's attendance at KinderCare ceases, except that if any such
14 cessation is temporary, the Consent Decree will not terminate.
15 If William and Sherry Orr consider a cessation in attendance to
16 be temporary, they must advise KinderCare of such in writing and
17 KinderCare will be bound by such a notice.
18                                     IV.
19                      SCOPE AND EFFECT OF SETTLEMENT
20              8.      Jeremy Orr will be allowed to attend and receive
21 child care in KinderCare's after-school program until he has
22 reached the upper-age limit for which KinderCare provides care
23 for any child, which is currently the completion of twelve years
24 of age, and, during that time period, he will be included in
25 KinderCare's activities as required by paragraph 3 of this
26 Court's Order dated June 9, 1995. That paragraph provides as
27 follows:
28 ///
                                        4
1               KinderCare shall make available to Jeremy, to
                the extent practicable, all opportunities
2               that are made available to other children
                attending the after school daycare program at
3               the Elk Grove center.
4  It is understood that Jeremy Orr will comply with KinderCare's
5  rules and that he will have the same rights as other children at
6  KinderCare except that Jeremy Orr has the rights provided by the
7  ADA, 42 U.S.C S 12101 et seq., and sections 51 and 54.1 of the
8  California Civil Code, or regulations or law thereunder and as
9  provided herein;
10              9.      Jeremy Orr will be allowed to attend KinderCare
11 not only after school but also during school breaks, holidays,
12 vacations, minimum days, or at any other time when his regular
13 special education classroom is not open during school hours;
14              10.     Jeremy Orr will be permitted to attend KinderCare
15 with a personal assistant not funded by KinderCare provided that
16 an agreement with KinderCare is in place with any agency
17 providing a personal assistant (or in lieu of said agreement, a
18 Certificate of Insurance provided by said agency is provided to
19 KinderCare) that said agency will provide liability insurance in
20 the amount of $1,000,000 (or for the same amount as the general
21 liability coverage maintained by KinderCare, whichever is lower)
22 to indemnify KinderCare for liability to third parties in
23 connection with the personal assistant (in the event that such
24 agency ceases to provide the coverage specified in this
25 paragraph, the Orrs agree to arrange with such agency providing a
26 personal assistant that the agency shall notify the Orrs if and
27 when the amount of insurance coverage is below the amount
28 specified in this paragraph and to inform KinderCare
SCI-93508.1                             5
1  expeditiously in writing of such notification by such agency, and
2  KinderCare will determine fairly, reasonably and in good faith
3  whether such insurance is sufficient for the purposes of this
4  provision), that the personal assistant meets all applicable
5  state standards for care of a child by a person providing the
6  type of service that the personal assistant will provide to
7  Jeremy Orr, that the personal assistant will not be an employee
8  or independent contractor of KinderCare, and that the personal
9  assistant will be subject to the overall supervision of
10 KinderCare while he or she is present at KinderCare with Jeremy
11 Orr as Jeremy Orr's personal assistant. If KinderCare receives a
12 notice of Noncompliance or a notice that an Accusation or any
13 written notice or document having a similar legal effect will be
14 issued by the licensing or similar authorities in connection with
15 the presence or conduct of the personal assistant, the parties
16 agree that William and Sherry Orr will provide a different
17 personal assistant until the problem is resolved or, if they do
18 not, that Jeremy Orr will attend without a personal assistant.
19 It is understood that applicable licensing ratio requirements
20 will be met by KinderCare independent of the presence of the
21 personal assistant. It is also understood that KinderCare will
22 not be required to make programmatic changes on account of the
23 personal assistant's presence except as the ADA and sections 51
24 and 54.1 of the California Civil Code may require with respect to
25 persons with disabilities, and that the personal assistant will
26 function as Jeremy Orr's personal assistant and will not be
27 permitted or required to provide any services to other children.
28 ///
SCI-93508.1                             6
1               11.     Following the entry of this Consent Decree,
2  William and Sherry Orr and KinderCare Elk Grove will have a
3  meeting, which shall occur as expeditiously as possible, to
4  discuss the personal assistant's presence and services, and
5  Jeremy Orr will then be permitted to attend KinderCare in the 6-
6  12 room during such hours as that room is in session. For hours
7  that the 6-12 room is not in session, Jeremy Orr may attend in
8  another classroom. It is understood that Jeremy Orr will be
9  required to attend the 6-12 room with a personal assistant for
10 the first 45 days only. Jeremy Orr may at any time he is at
11 KinderCare attend the two-year-old room without a personal
12 assistant. The parties agree that KinderCare will not insist as
13 a condition of Jeremy Orr's attendance at KinderCare that Jeremy
14 Orr attend KinderCare with a personal assistant. William and
15 Sherry Orr understand that, if Jeremy Orr does not attend the 6-
16 12 room with a personal assistant, KinderCare has not undertaken
17 to involve him in 6-12 room activities as fully as he would be
18 involved with a personal assistant.
19              12.     KinderCare and William and Sherry Orr will have
20 meetings no less than monthly to discuss Jeremy Orr's
21 participation at KinderCare, which may, at William and Sherry
22 Orrs' option, be attended by an inclusion specialist. KinderCare
23 will permit an individual designated by William and Sherry Orr
24 and trained in integrating special needs children to observe
25 Jeremy Orr at KinderCare upon reasonable notice prior to each
26 such visit at KinderCare and to provide advice to KinderCare
27 management in integrating Jeremy Orr at the meetings referenced
28 ///
SCI-93508.1                             7
1  in this paragraph. It is understood that such visits will be
2  planned so as not to be unreasonably intrusive to KinderCare; and
3               13.     KinderCare agrees to discontinue policies,
4  practices and procedures inconsistent with the terms hereof or
5  involving special enrollment requirements for the enrollment of
6  children with disabilities at KinderCare's Elk Grove facility,
7  and has certified that each of its Elk Grove staff has read
8  KinderCare and the ADA.
9                                       V.
10                             MONETARY PROVISIONS
11              14.     The parties agreed to a confidential monetary
12 settlement.
13                                     VI.
14                           MISCELLANEOUS PROVISIONS
15              15.     The terms of this Consent Decree, including the
16 Memorandum of Agreement and all documents submitted to the Court
17 relating to this settlement, are the exclusive and final
18 expression of all agreements by the parties with respect to any
19 and all claims by the Plaintiffs in the above-referenced action,
20 Sherry Orr, William Orr and Jeremy Orr, a minor, through his
21 guardian ad litem Elaine Huffstutler v. KinderCare Learning
22 Centers, Inc. The parties accept entry of this Consent Decree
23 based solely upon its terms and not in reliance upon any
24 representations or promises other than those contained in this
25 Consent Decree.
26 ///
27 ///
28 ///
SCI-93508.1                             8
1               16.     None of the parties is bound by any provisions of
2  this Consent Decree until it is signed by authorized
3  representatives of each party and approved by the Court.
4  Dated: September 8, 1995             CYNTHIA J. LARSEN
                                        TIMOTHY J. LONG
5                                       JENNIFER P. BROWN
                                        ORRICK, HERRINGTON & SUTCLIFFE
6
7                                       By
                                                Cynthia J. Larsen
8                                           Attorneys for Plaintiffs
9
   Dated: September 8, 1995             ARLENE B. MAYERSON
10                                      DIANE J. LIPTON
                                        DISABILITY RIGHTS EDUCATION
11                                         AND DEFENSE FUND, INC.
12
                                        By
13                                               Arlene Mayerson
                                            Attorneys for Plaintiffs
14
15 Dated: September 11, 1995            GIL A. ABRAMSON
                                        ANDREW C. TOPPING
16                                      HOGAN & HARTSON LLP.
17
                                        By
18                                               Gil A. Abramson
                                             Attorneys for Defendant
19
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SCI-93508.1                             9
1               The Court hereby approves and orders the provisions of
2  the foregoing Consent Decree in its entirety.
3               IT IS SO ORDERED.
4  Dated: September 18, 1995
                                                Edward J. Garcia, Judge
5                                            United States District Court
6
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SCI-93508.1                             10
1  CYNTHIA J. LARSEN (State Bar No. 123994)
   TIMOTHY J. LONG (State Bar No. 137591)
2  JENNIFER P. BROWN (State Bar No. 173439)
   ORRICK, HERRINGTON & SUTCLIFFE
3  400 Capitol Mall, Suite 3000
   Sacramento, California 95814-4407
4  Telephone: (916) 447-9200
5  ARLENE B. MAYERSON (State Bar No. 79310)
   DIANE J. LIPTON (State Bar No. 120836)
6  DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC.
   2212 Sixth Street
7  Berkeley, California 94710
   Telephone: (510) 644-2555
8
   Attorneys for Plaintiffs
9
   GIL A. ABRAMSON
10 ANDREW C. TOPPING
   HOGAN & HARTSON LLP.
11 111 S. Calvert Street, Suite 1600
   Baltimore, Maryland 21202
12 Telephone: (410) 659-2700
13 Attorneys for Defendant
14                         UNITED STATES DISTRICT COURT
15                        EASTERN DISTRICT OF CALIFORNIA
16
17 SHERRY ORR; WILLIAM ORR; and         )       No. CV-S-95-507 EJG GGH
   JEREMY ORR, a minor, through         )
18 his guardian ad litem Elaine         )
   Huffstutler,                         )       ORDER APPROVING
19                                      )       JOINT APPLICATION FOR APPROVAL
                                        )       OF CONSENT DECREE, PROPOSED
20              Plaintiffs,             )       SETTLEMENT AND VOLUNTARY
        v.                              )       DISMISSAL WITH PREJUDICE
21                                      )
                                        )
22 KINDERCARE LEARNING CENTERS,         )
   INC.,                                )
23                                      )
                Defendant.              )
24                                      )
25              Plaintiffs Sherry Orr, William Orr and Jeremy Orr, a
26 minor child, by and through his guardian ad litem Elaine
27 Huffstutler, and Defendant KinderCare Learning Centers, Inc.,
28 ///
1  acting through their respective counsel of record, have reached a
2  settlement in the above-captioned action.
3               GOOD CAUSE APPEARING THEREFOR, it is hereby ordered
4  that:
5               1.      The Joint Application for Approval of Consent
6  Decree, Proposed Settlement and Voluntary Dismissal With
7  Prejudice is approved in its entirety;
8               2.      The above-captioned action is dismissed with
9  prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2).
10 The Court retains jurisdiction over this matter following
11 dismissal to enforce the provisions of the aforementioned Consent
12 Decree and to carry out the purpose and intent of the parties'
13 agreement as memorialized in the Consent Decree.
14              3.      The monetary portion of the settlement obtained by
15 the Plaintiffs shall be placed in a custodian account or accounts
16 in Jeremy Orr's name and shall be used for the benefit of Jeremy
17 Orr.
18              IT IS SO ORDERED.
19 Dated: September 18, 1995
                                                Edward J. Garcia, Judge
20                                            United States District Court
21
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                                        2
                          SETTLEMENT AGREEMENT UNDER THE
                         AMERICANS WITH DISABILITIES ACT
        THIS SETTLEMENT AGREEMENT ("Agreement") is
made by and among KinderCare Learning Centers, Inc.
("KinderCare"), Jesi Stuthard, by his next friend
Patricia Dollison, the American Diabetes Association,
the American Diabetes Association, Ohio Affiliate, Inc.
(collectively "Plaintiffs"), and the United States of
America ("United States").
        WHEREAS, on February 26, 1996, Jesi Stuthard
by his next friend Patricia Dollison; the American
Diabetes Association; and the American Diabetes
Association, Ohio Affiliate, Inc., filed an action
entitled Jesi Stuthard, a minor child, by Patricia
Dollison, his next friend, et al. v. KinderCare
Learning Centers, Inc., as Case No. C2-96-0185, in the
United States District Court for the Southern District
of Ohio, Eastern Division (the "Stuthard Case")
alleging, among other claims, that KinderCare had
violated Title III of the Americans with Disabilities
Act of 1990 ("ADA"), 42 U.S.C. SS 12181-89, and Section
4112.02(G) of the Ohio Revised Code, by refusing to
monitor the blood glucose levels of Jesi Stuthard and
other children with insulin-dependent diabetes; and
        WHEREAS, KinderCare maintained a policy which
allowed children or their parent(s), guardian(s), or
authorized agent(s) to monitor the child's blood
glucose levels; and
        WHEREAS, the United States, which is not a
party to the Stuthard Case, simultaneously conducted an
investigation prompted by two complaints (DJ 202-58-18
and DJ 202-26S-3) which alleged that KinderCare's
policies regarding the monitoring and treatment of
children with diabetes violated Section 302 of the ADA,
42 U.S.C. S 12182, and the Department of Justice's
implementing regulation, 28 C.F.R. SS 36.201(a),
36.202, 36.301(a), and 36.302, and violated the rights
of their parent(s) and/or guardian(s) under
Section 302(b)(1)(E), 42 U.S.C. S 12182(b)(1)(E), and
the Title III regulation, 28 C.F.R. S 36.205; and
        WHEREAS, the United States and KinderCare
agree that resolution of this investigation is in the
public interest and that the matters raised therein can
be resolved as set forth below; and
        WHEREAS, KinderCare has and continues to deny
any and all liability with respect to the allegations
made in the Complaint by the Plaintiffs or the
investigation conducted by the United States and
nothing in this Agreement, including the payment of any
                                        2
sums by KinderCare, constitutes an admission by
KinderCare of any such wrongdoing, or liability, or
otherwise constitutes a violation of the ADA and/or the
Ohio Revised Code; and
        WHEREAS, KinderCare and the Plaintiffs desire
to resolve the Stuthard Case and all matters relating
to the subject matter thereof.
        NOW, THEREFORE, for and in consideration of
the mutual promises and the releases as set forth
herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby
acknowledged, KinderCare, the Plaintiffs and the United
States agree as follows.
        1.      KinderCare has cooperated fully in the
United States' investigation and has demonstrated a
commitment to provide its services to persons with
disabilities without discrimination. The parties have
agreed that this matter can be resolved without resort
to further litigation.
        2.      KinderCare is a public accommodation
within the meaning of Title III of the ADA, 42 U.S.C.
S 12181(7), and its implementing regulation, 28 C.F.R.
S 36.104, as it owns and operates approximately 1,200
child care centers nationwide.
                                        3
        3.      KinderCare will not refuse to admit any
child to any of its programs on the basis that the
child has insulin-dependent diabetes or needs blood
glucose testing. Prior to a child's enrollment into
its program, KinderCare will not inquire specifically
whether a child has diabetes or needs diabetes-related
care or monitoring.
        4.      When informed that a child has insulin-dependent
diabetes, KinderCare will advise the child's
parent(s) or guardian(s) of the KinderCare Policy on
Testing Blood Glucose Levels, a copy of which is
attached hereto as Exhibit 1 (the "Policy on Testing
Blood Glucose Levels") and, when asked to do so,
KinderCare will monitor the child's blood glucose
levels, including administration of the finger-prick
test, in accordance with the Policy on Testing Blood
Glucose Levels.
        5.      In connection with the monitoring of a
child's blood glucose levels, KinderCare will take only
those actions instructed on the child's Authorization
for Care of Children with Insulin-Dependent Diabetes
form (the "Authorization Form") executed by the child's
physician and parent(s) or guardian(s), which is
attached hereto as Exhibit 2 and which shall be
provided in substantially the same format as set forth
                                        4
in Exhibit 2. Some of the actions provided for in the
Authorization Form include, but are not limited to, the
following:
                (a) Administering certain fast-acting
carbohydrates, as supplied by the parent(s) or
guardian(s);
                (b) Administering certain complex
carbohydrates as supplied by the parent(s) or
guardian(s);
                (c) Calling "911" or other emergency
medical personnel, parent(s) or guardian(s), and the
child's doctor in the event of loss of consciousness or
seizure or other medical emergency;
                (d) Providing notification to the
parent(s) or guardian(s) of high blood glucose levels;
                (e) Telephoning the parent(s) or
guardian(s) and the child's physician in the event of
very high blood glucose levels;
                (f) Monitoring the child's diet as
instructed by the child's physician; and
                (g) Monitoring the child's recreational
activities as instructed by the child's physician.
        6.      KinderCare will keep records of any test
it performs in accordance with its Policy on Testing
Blood Glucose Levels for a period of six (6) months
                                        5
from the date of the test. Kindercare will provide
copies of these records to the child's parent(s) or
guardian(s), upon written request on a form provided by
KinderCare when such a request is made, the reasonable
copying costs being borne by the parent(s) or
guardian(s).
        7.      Nothing in this Agreement requires
KinderCare to administer insulin shots to anyone.
        8.      Notwithstanding Paragraphs 4 and 5,
KinderCare will allow the parent(s) or guardian(s), or
authorized agent(s), to enter KinderCare's premises at
any time a child is in KinderCare's care, to monitor
the child's blood glucose levels and take appropriate
action in response to those levels. KinderCare also
will allow the child to monitor her or his own blood
glucose levels and take appropriate action in response
to those levels when the child's parent(s) or
guardian(s) have provided KinderCare with written
authorization to do so.
        9.      KinderCare may request the child's
parent(s) or guardian(s) to provide KinderCare with,
but not limited to, the following:
                (a) All equipment, food, and substances,
not regularly provided by KinderCare, that are
necessary for taking any actions described in the
                                        6
child's authorization form or KinderCare's Policy on
Testing Blood Glucose Levels;
                (b) Permission to undertake the steps
indicated on the Authorization Form and to respond to
any diabetes-related emergency in a manner consistent
with those instructions;
                (c) An executed Release and Waiver of
Liability for Testing of Children with Insulin-Dependent
Diabetes form, a copy of which is attached
hereto as Exhibit 3 (the "Release"). As set forth in
the Release and without derogation of its contents,
this form releases KinderCare from liability stemming
from any action taken with reasonable care by
KinderCare's employees and/or agents in conformance
with the child's Authorization Form;
                (d) Complete maintenance and proper
disposal of all materials and equipment, including
keeping the blood glucose meter in good working order
(i.e., cleaning and performing controlled testing per
the manufacturer's instructions); and
                (e) The parties understand and agree
that nothing in Paragraph 3 of the Release shall be
construed to supersede or replace any provision of this
Agreement.
                                        7
        10.     KinderCare may require the parent(s) or
guardian(s) to update the Authorization Form every six
(6) months, or sooner if the child's needs change.
        11.     KinderCare shall admit (and not place on
any waiting list) Jesi Stuthard to its child care
program at the KinderCare Learning Center at
3860 Hoover Road in Grove City, Ohio, within three (3)
days of the effective date of this Agreement or sooner
upon execution of all enrollment forms and completion
of all enrollment procedures applicable to all children
enrolling in a KinderCare program, and shall maintain
his enrollment in an age appropriate program consistent
with KinderCare's practices and procedures with respect
to all children. KinderCare will admit Jesi Stuthard
to any other KinderCare facility in accordance with
KinderCare enrollment procedures upon request of his
parent or guardian and execution of all enrollment
forms applicable to all children enrolling in a
KinderCare program.
        12.     KinderCare shall provide disability
sensitivity training to KinderCare personnel who have
direct contact with children in its centers and/or
direct contact with parent(s)/guardian(s) of children
enrolled or seeking enrollment in a KinderCare program.
This training obligation shall last for a period of not
                                        8
less than three (3) years and will cover, but is not
limited to, the following ADA topics: enrollment of
children with disabilities who otherwise qualify for
admission to KinderCare, including eligibility criteria
and the prohibition of surcharges; making reasonable
modifications to its policies, practices, and
procedures when necessary to integrate children or
parent(s)/guardian(s) with disabilities when doing so
does not fundamentally alter the nature of its goods
and services and would not impose an undue burden upon
KinderCare; integrating children with disabilities into
its regular program to the maximum extent appropriate
for the needs of the child; providing personal services
to children with disabilities when personal services
are provided to others; providing effective
communication to children and parent(s)/guardian(s)
with disabilities by furnishing appropriate auxiliary
aids and services unless doing so would impose an undue
burden or fundamentally alter the nature of
KinderCare's goods and services; and removing
architectural barriers where readily achievable.
        13.     In all centers in which children with
insulin-dependent diabetes are enrolled or are about to
be enrolled, KinderCare will cooperate with the
parent(s) or guardian(s) of any such children so that
                                        9
the caregivers at KinderCare may be instructed as to
the working of each child's particular blood glucose
meter. In addition, KinderCare shall advise all
KinderCare staff members at such centers, who in
KinderCare's reasonable judgment have a need to know,
which children have insulin-dependent diabetes, provide
information about the symptoms and signs of
hypoglycemia (low blood glucose), and provide training
on the procedures to follow in the event of an
emergency.
        14.     Within ten (10) days of the effective
date of this Agreement, KinderCare will appoint a
Disability Services Coordinator ("DSC") or equivalent
to attempt to resolve disability-related issues raised
by customers or potential customers as such issues
arise. Responses to disability-related questions shall
be provided within a reasonable time.
        15.     Within thirty (30) days of the effective
date of this Agreement, and through December 31, 2001,
KinderCare will prominently display an announcement at
each KinderCare site throughout the country in an area
readily visible to employees and existing and potential
customers. This announcement will include, but is not
limited to, the following:
        "KinderCare does not discriminate
        on the basis of disability.
                                        10
        KinderCare has appointed a
        Disability Services Coordinator to
        attempt to resolve disability-
        related issues.
                        [name]
                       [address]
             [toll-free telephone number]
                   (voice and TDD)".
This portion of the announcement will appear in no less
than 18 point type in a san-serif font and will be
printed in such a way that there is a high level of
contrast between the background and print colors.
        16.     Within fourteen (14) days of the
effective date of this Agreement, KinderCare will send
notices to each of its child care centers within the
United States informing them of the substance of this
Agreement and requiring the modification of existing
information handouts, enrollment materials, and
registration forms to bring them into conformity with
the policies adopted herein.
        17.     Within thirty (30) days of the effective
date of this Agreement, KinderCare will distribute to
each of its child care centers within the United States
new information handouts, enrollment materials, and
registration forms that state policies in conformity
with this Agreement to the extent that existing
handouts, materials and forms cannot be modified. Each
of these will contain the full statement referenced in
                                        11
Paragraph 15, which will be printed in 10 point type or
larger. KinderCare will instruct each center to
destroy all unused copies of such printed matters that
reflect company policies rendered invalid under this
Agreement to the extent that such printed matters
cannot be modified.
        18.     KinderCare has provided to the United
States a copy of the ADA and KinderCare Manual. The
United States has provided, with respect to said
Manual, and will continue to provide informal technical
assistance to KinderCare as it develops employee
training materials to implement this Agreement, as
authorized by 42 U.S.C. S 12206(c)(1). Statements in
KinderCare's employee training materials are not
binding upon the Department of Justice.
        19.     KinderCare will instruct each Center
Director to consult with the DSC before rejecting any
application for enrollment on behalf of a child with a
disability to the extent that the Center Director is
aware that such child is an individual with a
disability within the meaning of the ADA. KinderCare
will maintain a record at its corporate headquarters of
all such admission inquiries on behalf of children with
disabilities, including insulin-dependent diabetes, and
                                       12
the disposition of such inquiries for a period of one
(1) year from the date of inquiry.
        20.     KindeCare agrees to make the payments
listed in a separate letter between counsel for the
Plaintiffs and KinderCare the provisions of which are
and shall remain confidential. The payments shall be
made when this Agreement is fully executed by all
parties.
        21.     The United States agrees not to sue
KinderCare in conjunction with its investigations of
DJ 202-58-18 and DJ 202-26S-3 and on all matters set
forth in this Agreement, unless KinderCare violates
this Agreement, in which case the United States agrees
to provide KinderCare with an opportunity to cure in
accordance with Paragraph 25 herein.
        22.     Patricia Dollison, as next friend of
Jesi Stuthard, agrees that she may enforce this
Agreement only to the extent that its provisions
directly and individually affect Jesi Stuthard's
enrollment, finger-prick testing, care and/or continued
enrollment at KinderCare.
        23.     The United States may enforce all
provisions of this Agreement. For three (3) years from
the effective date of this Agreement, the United States
may request KinderCare to provide the government with
                                        13
information or documentation regarding the
implementation of any provision or provisions of this
Agreement. If KinderCare receives such a request from
the United States, it will use its best efforts to
provide a complete, written response to the request
within ten (10) business days.
        24.     KinderCare reports that it has
approximately 1,200 centers, 22,000 employees, and
120,000 children enrolled nationwide and has a high
employee turnover rate. The United States acknowledges
that, in view of these factors, KinderCare's good faith
efforts to satisfy the employee education provisions
and implementation procedures set forth in this
Agreement shall satisfy the good faith standard of 42
U.S.C. S 12188(b) (5), notwithstanding that not all
KinderCare employees may be fully knowledgeable about
the totality of the company's disability-related
policies at all times.
        25.     In the event that the United States
believes that KinderCare is not fully complying with
the terms of this Agreement, it will so notify
KinderCare in writing and will provide KinderCare with
an opportunity to cure, pursuant to Executive
Order 12778, even if this Executive Order is amended or
repealed. The United States and KinderCare shall
                                        14
engage in good faith negotiations to resolve any
dispute arising under this Agreement. If, despite good
faith negotiations, the United States and KinderCare
are unable to resolve the dispute, the United States
may institute a civil action in the United States
District Court for the Southern District of Ohio to the
extent that the dispute is directly with regard to Jesi
Stuthard's enrollment, finger-prick testing, care or
continued enrollment at KinderCare, and in all other
cases in an appropriate Federal district court as
authorized by 42 U.S.C. S 12188(b) (2). The United
States agrees that any such action to enforce the terms
of this Agreement will be based solely upon
KinderCare's actions after the effective date of this
Agreement.
        26.     Failure by the United States to enforce
this entire Agreement or any provision hereof with
regard to any deadline or any other provision herein
shall not be construed as a waiver of its right to do
so with regard to other deadlines and provisions of
this Agreement.
        27.     The American Diabetes Association and
the American Diabetes Association, Ohio Affiliate,
Inc., may enforce the provisions of this Agreement only
                                        15
to the extent that they pertain to children with
insulin-dependent diabetes.
        28.     The parties to the Stuthard Case shall
file a joint motion with the Court requesting that the
Court dismiss the suit with prejudice provided,
however, that in any subsequent lawsuit to enforce this
Agreement, neither KinderCare nor Plaintiffs will
oppose a request to the Court for expedited procedures
to resolve the dispute.
        29.     This Agreement does not purport to
remedy any other potential violations of the ADA not
directly addressed in this Agreement. Nothing in this
Agreement affects or relieves KinderCare of its
responsibility to comply with any other Federal, State,
or local law or regulation. Except as set forth
herein, nothing in this Agreement is intended or shall
be construed as a waiver by the United States of any
right to institute any proceeding or action against
KinderCare for any past, present, or future violations
of any statutes, rules, or regulations administered by
the United States.
        30.     Nothing in this Agreement is intended to
cause KinderCare to violate the provisions of any state
or local law; provided, however, that in the event
KinderCare becomes aware of a state or local law or
                                        16
ordinance that prohibits KinderCare from monitoring the
blood glucose levels of children with insulin-dependent
diabetes enrolled in its program and so notifies the
United States in writing, the United States will
refrain from enforcing the Agreement with respect to
the centers covered by the state or local law at issue
for a period of sixty (60) days or until the United
States and/or state and local officials resolve the
matter. None of the parties to this Agreement is aware
of any state, local and/or municipal laws in Ohio which
prevent KinderCare from enrolling and caring for
children as provided in this Agreement.
        31.     A copy of this Agreement shall be made
available to any person upon request to the United
States.
        32.     This Agreement is final and binding as
to all signatories hereto, including all principals,
agents, successors in interest and assigns of
KinderCare and Plaintiffs. The undersigned
representatives certify that they are authorized to
enter into and consent to the terms and conditions of
this Agreement and execute and legally bind their
respective parties to it.
        33.     This Agreement shall constitute, and in
executing this Agreement Plaintiffs and KinderCare
                                        17
hereto enter into, a full release as to any and all
claims, including cross-claims or third-party claims,
as to any and all events, actions, or matters that were
or could have been raised in the Stuthard Case, as well
as all other disputes or controversies arising from any
and all transactions or relationships between
KinderCare and Plaintiffs, occurring through the date
of this Agreement, and except as to the rights and
obligations created by the Agreement, KinderCare hereby
fully and forever releases and discharges each of the
Plaintiffs, their parent companies, subsidiaries,
successors, predecessors, affiliates, agents,
directors, trustees, officers, employees, members,
attorneys and assigns, both past and present, from all
claims, causes of action, losses, liabilities, and
demands of any kind whatsoever, whether or not accrued,
whether contingent or otherwise, whether liquidated or
unliquidated, and whether known or unknown and the
Plaintiffs hereby fully and forever release and
discharge KinderCare, its parent company, subsidiaries,
successors, predecessors, affiliates, agents,
directors, trustees, officers, employees, members,
attorneys and assigns, both past and present, from all
claims, causes of action, losses, liabilities, and
demands of any kind whatsoever, whether or not accrued,
                                        18
whether contingent or otherwise, whether liquidated or
unliquidated, and whether known or unknown. Plaintiffs
and KinderCare each are aware that they may hereafter
discover claims or facts in addition to or different
from those they now know or believe to be true with
respect to the other parties to this Agreement.
Nevertheless, as set forth above, it is the intention
of the Plaintiffs and KinderCare to fully, finally and
forever settle and release all matters and all claims
related thereto, which do now exist or may heretofore
have existed between KinderCare and the Plaintiffs. In
furtherance of such intention, the releases given
herein shall be and shall remain in effect as full and
complete releases of all such matters notwithstanding
the discovery or existence of any additional or
different claims or facts related thereto.
        34.     This Agreement may be executed in
duplicate counterparts.
        35.     This Agreement shall be effective from
the date of the last execution in accordance with
Paragraph 34 herein.
        36.     This Agreement sets forth and contains
the entire agreement between and among Plaintiffs and
KinderCare and the United States pertaining to the
purpose and subject matter of this Agreement, and fully
                                        19
supersedes any and all prior oral and/or written
agreements, understandings, communications or
discussions of Plaintiffs, KinderCare and the United
States or their counsel pertaining to the purpose and
subject matter of this Agreement. No change in,
modification of, or addition, amendment or supplement
to this Agreement shall be valid unless set forth in
writing and signed by or on behalf of Plaintiffs,
KinderCare and the United States subsequent to the
effective date of this Agreement.
        IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date(s) set forth below.
FOR PLAINTIFFS:
Patricia Dollison, as Next Friend of Jesi Stuthard
The American Diabetes Association, and
The American Diabetes Association, Ohio Affiliate, Inc.
By:                                     By:
   ARLENE B. MAYERSON                      JOHN J. KULEWICZ
   DREDF                                   Vorys, Sater, Seymour and
   2212 Sixth Street                       Pease
   Berkeley, CA 94710                      P. O. Box 1008
   (510) 644-2555                          52 East Gay Street
                                           Columbus, Ohio 43216-1008
                                           (614) 464-5634
Date: 8-19-96                              Date: August 16, 1996
                                        20
FOR THE UNITED STATES:
DEVAL L. PATRICK                        EDMUND A. SARGUS, JR.
Assistant Attorney General              United States Attorney for
Civil Rights Division                   the Southern District of Ohio
By:                                     By:
   JOHN L. WODATCH, Chief                  MAUREEN E. MURPHY
   L. Irene Bowen, Deputy                  Assistant United States
   Mary Lou Mobley                         Attorney
   Kaye Pestaina                           2 Nationwide Plaza
   Disability Rights Section               280 N. High Street,
   P.O. Box 66738                          4th Floor
   Washington, D.C. 20035-6738             Columbus, Ohio 43215
   (202) 307-0663                          (614) 469-5715
Date: Aug. 22, 1996                     Date: 8-20-96
FOR KINDERCARE LEARNING
CENTERS, INC.:
By:
   GIL A. ABRAMSON
   Hogan & Hartson L.L.P.
   111 South Calvert Street
   Suite 1600
   Baltimore, MD 21202-6191
   (410) 659-2700
Date: August 22, 1996
                                        21
                        KINDERCARE LEARNING CENTERS, INC.
                     POLICY ON TESTING BLOOD GLUCOSE LEVELS
        Children with insulin-dependent diabetes may require
routine monitoring and regulating of their blood glucose levels.
Parent(s)/guardian(s) of children with diabetes have several
options for monitoring and regulating, each of which must be
authorized by the parent(s)/guardian(s) in writing.
Parent(s)/guardian(s) can choose to have any of the following
people test the blood glucose levels of any such children:
                1.      The child can test himself or herself, if old
        enough and responsible enough and authorized by the
        parent(s)/guardian(s) on the Authorization for Care of
        Children with Insulin-Dependent Diabetes (the "Authorization
        Form");
                2.      The parent(s)/guardian(s) is welcome to come to
        KinderCare and do his or her own testing;
                3.      KinderCare staff will test blood glucose levels
        (including administering a "finger-prick" test) and take
        those steps to regulate the child's blood glucose as
        authorized by the parent(s)/guardian(s) on the Authorization
        Form; or
                4.      Parent(s)/guardian(s) can arrange for someone else
        to provide testing and treatment.
        Parent(s)/guardian(s) must provide the following:
                1.      A signed copy of KinderCare's Authorization Form.
        This form must be filled out completely by the child's
        doctor and parent(s)/guardian(s), and must be updated every
        six (6) months or more often, if needed. The form is
        designed to provide KinderCare with information necessary
        for ensuring proper management of the child's diabetes and
        quick and effective response to emergencies.
                2.      All equipment and specialty foods needed for
        testing or treatment. The parent(s)/guardian(s) is
        responsible for the maintenance of materials and equipment,
        including ensuring that the blood glucose meter is in good
        working order. KinderCare is not responsible for damage or
        loss of equipment or specialty foods, so long as KinderCare
        has exercised reasonable care in storing and using these
        items.
                                                                       EXHIBIT
                                                                          1
                3.      A signed copy of KinderCare's "Release and Waiver
        of Liability for Testing of Children with Diabetes." This
        form releases KinderCare and its employees from liability
        for administering the blood glucose test and taking actions
        set out on the Authorization Form, provided KinderCare
        exercises reasonable care in following the doctor's and
        parent's(s')/guardian's(s') instructions.
                If you have any questions, please contact KinderCare's
Disability Services Coordinator at 1-800- or
your Center Director.
                                        2
                        KINDERCARE LEARNING CENTERS, INC.
(Form)                 Authorization for Care of Children
                        with Insulin-Dependent Diabetes
                                                                       EXHIBIT 
                                                                          2
(Form)                  To Be Filled Out By Parent(s)
                             and/or Guardian(s)
                                        2
(Form)                             HYPOGLYCEMIA
                                 (Low Blood Sugar)
                        KINDERCARE LEARNING CENTERS, INC.
                    RELEASE AND WAIVER OF LIABILITY FOR TESTING
                    OF CHILDREN WITH INSULIN-DEPENDENT DIABETES
        THIS IS A RELEASE AND WAIVER OF LIABILITY FOR
TESTING OF CHILDREN WITH INSULIN-DEPENDENT DIABETES
(hereinafter referred to as "Release") made this XX
day of XX            , 19XX , by and between KINDERCARE
LEARNING CENTERS, INC. ("KinderCare") and
XX                                  and XX
residing at XX                             , who are the
parent(s) or guardian(s) of XX                                   .
        WHEREAS, KinderCare provides child care services
at numerous facilities throughout the country and the
Parent(s) or Guardian(s) has engaged KinderCare to
provide child care services for XX                            ;
        WHEREAS, KinderCare has been requested by the
Parent(s) or Guardian(s) to provide blood glucose
testing to the child during certain time periods when
the child is enrolled in KinderCare and to take certain
actions as a result of the blood glucose testing as
prescribed in writing on the child's "Authorization for
Care of Children with Insulin-Dependent Diabetes", all
in accordance with, and subject to, the KinderCare
Policy on Testing Blood Glucose Levels.
        NOW, THEREFORE, in consideration of the agreements
and covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto
hereby agree as follows:
        1.      The Parent(s) or Guardian(s) hereby release
and forever discharge KinderCare and its employees or
agents from any and all liability arising in law or
equity as a result of KinderCare's employees or agents
performing with reasonable care blood glucose testing
and/or taking actions in conformance with the child's
"Authorization for Care of Children with Insulin-
Dependent Diabetes". The Parent(s) or Guardian(s) also
hereby release and forever discharge KinderCare from
any loss or damage incurred in the exercise of
reasonable care to any materials and/or equipment
supplied by the Parent(s) or Guardian(s) in connection
with the blood glucose testing.
                                                                       EXHIBIT
                                                                          3
        2.      This Release shall be governed by the laws of
the State of XX                    , which is the location
of the KinderCare facility, in which the child is
enrolled, excluding its choice of law provisions.
        3.      This Release supersedes and replaces all
prior negotiations and all agreements proposed or
otherwise, whether written or oral, concerning all
subject matters covered herein. This instrument, along
with the form entitled "Authorization for Care of
Children with Insulin-Dependent Diabetes," which is
hereby incorporated by reference, constitutes the
entire agreement among the parties with respect to the
subject matters discussed herein.
        4.      The reference in this Release to the term
KinderCare shall include its affiliates, successors,
directors, officers, employees and representatives.
The terms Parent(s)/Guardian(s) shall include the
dependents, heirs, executors, administrators, assigns
and successors or each.
        5.      If one or more of the provisions of this
Release shall for any reason be held invalid, illegal
or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect or
impair any other provision of this Release. This
Release shall be construed as if such invalid, illegal
or unenforceable provisions had not been contained
herein.
                        KINDERCARE LEARNING CENTERS, INC.
                        By:
                           Name:
                           Title:
                           Date:
                            PARENT(S) or GUARDIAN(S)
                        By:
                           Name:
                           Title:
                           Date:
                                        2
                        By:
                           Name:
                           Title:
                           Date:
                                        3
09116196 -0163617.01
1  KERRY ALAN SCANLON, Deputy Assistant
   Attorney General for Civil Rights,
2  JOHN L. WODATCH, Chief,
   JOAN A. MAGAGNA, Deputy Chief,
3  MARY LOU MOBLEY, Attorney
   Disability Rights Section
4  Civil Rights Division
   United States Department of Justice
5  P.O. Box 66738
   Washington, DC 20035-6738
6  Tel: (202) 307-0663
7  CHARLES J. STEVENS
   United States Attorney,
8  EDMUND F. BRENNAN,
   Deputy Civil Chief,
9  650 Capitol Mall
   Sacramento, CA 95814
10 Tel: (916) 554-2700
11
                        IN THE UNITED STATES DISTRICT COURT
12                    FOR THE EASTERN DISTRICT OF CALIFORNIA
13
                                        )
14 SHERRY A. ORR as Guardian ad Litem   )
   for JEREMY ORR, a Minor Child;       )       No. CIV-S-95-507 EJG PAN
15 SHERRY A. ORR; and WILLIAM ORR,      )
                                        )
16              Plaintiffs,             )
                                        )
17                      v.              )
                                        )
18 KINDERCARE LEARNING CENTERS, INC.,   )
                                        )
19              Defendant               )
20                                      )
21
22
23      REPLY BRIEF OF THE UNITED STATES AS AMICUS CURIAE IN SUPPORT OF
24               PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
25
26
27
28
1
                                TABLE OF CONTENTS
2
   TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . ii
3
   I.   The United States' Interpretation of the ADA is Entitled
4       to Substantial Deference . . . . . . . . . . . . . . . . . . . . . 2
5  II.  The Davis Decision and Related Cases Are
        Not Dispositive Here . . . . . . . . . . . . . . . . . . . . . . . 4
6
   III. KinderCare Must Provide Personal Services to Jeremy Orr,
7       As It Does for Younger Non-disabled Children . . . . . . . . . . . 7
8  IV.  Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1                               TABLE OF AUTHORITIES
2                                       CASES
3  Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
        Inc.,
4       467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . 2
5  Easley v. Snider, 36 F.3d 297, 305 (3d Cir. 1994), . . . . . . . . . . 6
6  Martin v. Occupational Safety and Health Review Comm'n,
        499 U.S. 144 (1991) . . . . . . . . . . . . . . . . . . . . . . . 3
7
   Southeastern Community College v. Davis,
8       442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . . . . .  4, 6
9  Thomas Jefferson University v. Shalala,
        114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . . . .  2
10
   STATUTES
11
   28 C.F.R. S 36 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7
12
   29 U.S.C. S 794 . . . . . . . . . . . . . . . . . . . . . . . . . . .  4
13
   42 U.S.C. S 302(b)(2)(A)(ii) . . . . . . . . . . . . . . . . . . . . . 5
14
   42 U.S.C. SS 12181-89 . . . . . . . . . . . . . . . . . . . . . . . .  1
15
   42 U.S.C. S 12182(b)(2)(A)(ii) . . . . . . . . . . . . . . . . . . . . 7
16
   42 U.S.C. S 12186(b) . . . . . . . . . . . . . . . . . . . . . . . . . 3
17
   42 U.S.C. S 12188(b)(1) . . . . . . . . . . . . . . . . . . . . . . .  3
18
19
20
21
22
23
24
25
26
27
28
ii
1  KERRY ALAN SCANLON, Deputy Assistant
   Attorney General for Civil Rights,
2  JOHN L. WODATCH, Chief,
   JOAN A. MAGAGNA, Deputy Chief,
3  MARY LOU MOBLEY, Attorney
   Disability Rights Section
4  Civil Rights Division
   United States Department of Justice
5  P.O. Box 66738
   Washington, DC 20035-6738
6  Tel: (202) 307-0663
7  CHARLES J. STEVENS
   United States Attorney,
8  EDMUND F. BRENNAN,
   Deputy Civil Chief,
9  650 Capitol Mall
   Sacramento, CA 95814
10 Tel: (916) 554-2700
11
                        IN THE UNITED STATES DISTRICT COURT
12                     FOR THE EASTERN DISTRICT OF CALIFORNIA
13
                                        )
14 SHERRY A. ORR as Guardian ad Litem   )
   for JEREMY ORR, a Minor Child;       )       No. CIV-S-95-507 EJG PAN
15 SHERRY A. ORR; and WILLIAM ORR,      )
                                        )       REPLY BRIEF OF THE
16              Plaintiffs,             )       UNITED STATES
                                        )       AS AMICUS CURIAE
17      v.                              )       IN SUPPORT OF
                                        )       PLAINTIFFS' MOTION FOR
18 KINDERCARE LEARNING CENTERS, INC.,   )       PRELIMINARY INJUNCTION
                                        )
19              Defendant               )
                                        )
20                                      )
21
        The complaint in this case alleged that KinderCare Learning
22
   Centers, Inc., has violated title III of the Americans with
23
   Disabilities Act (ADA), 42 U.S.C. SS 12181-89, by expelling a nine-
24
   year old child with a disability from its after-school child care
25
   program. Plaintiffs' motion for a preliminary injunction to prevent
26
   the expulsion is scheduled for hearing on May 26, 1995. In its
27
   opening brief as amicus curiae, the United States urged the Court to
28
                                        1
1  grant the motion because Plaintiffs are likely to prevail on the
2  merits of their claim and because the balance of hardships and the
3  public interest weigh in favoring of granting the injunction.
4       This reply addresses three issues raised by KinderCare in its
5  response:
6       (1)     the level of deference due to the government's
                interpretations of title III and its implementing
7               regulation;
8       (2)     the proper application of Southeastern Community College
                v. Davis and related case law; and
9
        (3)     the limited scope of the personal services exemption of 28
10              C.F.R. S 36.306.
11      All other substantive issues raised by KinderCare, as well as those
12 raised by Plaintiffs, are discussed at length in the United States'
13 opening brief.
14
15                      I. The United States' Interpretation
                  of the ADA is Entitled to Substantial Deference.
16
        KinderCare concedes, as it must, that the statutory and
17
   regulatory interpretations of an agency charged with promulgating
18
   implementation regulations are entitled to controlling weight so
19
   long as they are reasonable and not clearly erroneous or contrary to
20
   the statute or regulation. See Chevron, U.S.A., Inc. v. Natural
21
   Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Thomas
22
   Jefferson University v. Shalala, 114 S. Ct. 2381, 2386 (1994).
23
   While KinderCare challenges the government's analysis, in fact, as
24
   detailed in its brief, the United States' interpretations of the key
25
   title III provisions -- including the mandate to make reasonable
26
   modifications and the limited scope of the personal services
27
   exemption -- are consistent with legislative intent, the statute,
28
2
1  the regulation, and the Department's previously published
2  interpretations of title III. Each of the Department's arguments is
3  supported by citations to relevant authority.
4       KinderCare further suggests that the government's views should
5  be discounted because they are put forth as amicus curiae. However,
6  even the cases cited by KinderCare indicate that some measure of
7  deference must be afforded the views of the agency that authored the
8  regulations at issue, regardless of whether those views have
9  previously been articulated. See also Martin v. Occupational Safety
10 and Health Review Comm'n, 499 U.S. 144 (1991). In Martin, the
11 Supreme Court held that even though the Secretary of Labor's
12 interpretation of Occupational Safety and Health Act standards were
13 first advanced during an adjudicative proceeding, they were entitled
14 to deference because the Secretary was charged with establishing
15 standards though the exercise of workplace rulemaking powers and
16 enforcing them by issuing citations for violations of those
17 standards. The Supreme Court held that the Secretary's litigation
18 positions were "as much an exercise of delegated lawmaking powers as
19 is . . . promulgation of a workplace health and safety standard,"
20 and not simply appellate counsel's "post hoc rationalizations" of
21 agency actions that had already occurred. Id at 156 (citations
22 omitted).
23      Here, the Department of Justice is the agency charged by
24 Congress with both implementing title III of the ADA by promulgating
25 a regulation, see 42 U.S.C. S 12186(b), and enforcing it by
26 investigating complaints and litigating matters that cannot be
27 resolved through voluntary compliance. See 42 U.S.C. S 12188(b)(1).
28 The Department's position, therefore, is analogous to the position
                                        3
1  in which the Secretary of Labor stood in Mratin. Hence, the
2  Department's positions, even if first espoused in the context of
3  this litigation, are still entitled to some deference.
4 
5               II. The Davis Decision and Related Cases Are
                        Not Dispositive Here.
6
        The Supreme Court held in Southeastern Community College v.
7
   Davis, 442 U.S. 397 (1979), that entities subject to the
8
   Rehabilitation Act of 1973, 29 U.S.C. S 794, did not have to modify
9
   their programs to accommodate persons with disabilities if doing so
10
   would fundamentally alter those programs. The Davis court found
11
   that a nursing college did not have to enroll a deaf applicant who
12
   relied on lipreading for verbal communication, in part because it
13
   appeared unlikely that the applicant could succeed in the program,
14
   i.e., become a licensed registered nurse. The college's curriculum
15
   included a clinical component involving "'many situations, such as
16
   an operation room intensive care unit, or post-natal unit, [in
17
   which] all doctors and nurses wear surgical masks which would make
18
   lip reading impossible.'" Id. at 403 (quoting from the district
19
   court's decision, 424 F. Supp. 1341, 1343 (E.D.N.C. 1976)).
20
   Exempting the deaf applicant from these clinical components would
21
   fundamentally alter the nature of the college's nursing program, as
22
   she would not be fully prepared for the career of a licensed
23
   registered nurse.
24
        Similarly, in Easley v. Snider, 36 F.3d 297, 305 (3d Cir.
25
   1994), the Third Circuit found that a Pennsylvania program designed
26
   to teach persons with physical disabilities to live independently
27
   and to become active and useful members of society did not have to
28
                                        4
ILLEGIBLE modified to include persons with mental impairments who, the
ILLEGIBLE administrators had determined, could not meet the program's
ILLEGIBLE purpose: to develop fully-functioning, independent citizens.
ILLEGIBLE persons with mental disabilities to participate in the
ILLEGIBLE with the use of surrogates as decision-makers would be
ILLEGIBLE inconsistent with the level of achievement -- i.e.,
ILLEGIBLE living -- expected of program participants.
        The "fundamental alteration" defense from Davis was
ILLEGIBLE incorporated into title III's reasonable modification
ILLEGIBLE 42 U.S.C. S 302(b)(2)(A)(ii), and its implementing
ILLEGIBLE 28 C.F.R. S 36.302(a). KinderCare has used this defense
ILLEGIBLE justify expelling Jeremy, arguing that he cannot benefit from
ILLEGIBLE child care," and, as such, it would fundamentally alter the
ILLEGIBLE program to require it to retain him. This arguement is
ILLEGIBLE. It ignores the fact that the Supreme Court's analysis in
ILLEGIBLE was based primarily on the achievement-oriented nature of
ILLEGIBLE school. KinderCare relies on Davis and Easley to say that
ILLEGIBLE the Rehabilitation Act nor the ADA imposes any "requirement
ILLEGIBLE an 'educational institution to lower or effect substantial
ILLEGIBLE of standards to accommodate a handicapped person.'"
ILLEGIBLE Brief at 13, quoting Davis at 413. However, this
ILLEGIBLE is inapposite: simply put, KinderCare is not a competitive
ILLEGIBLE program designed to lead to a degree or professional
ILLEGIBLE, nor is it a program with a specific goal of achieving
ILLEGIBLE living. Instead, it is a program that offers children a
ILLEGIBLE supervised place to play and rest after school while parents
ILLEGIBLE are otherwise occupied.
        Jeremy attends KinderCare after attending his regular school --
                                        5
1  normally provided to younger children available to Jeremy as well.1
2  Indeed, KinderCare has provided diapering services to Jeremy since
3  he enrolled in its after-school program in September 1994. There is
4  nothing in the record to suggest that this has been difficult or
5  problematic.2
6
7
8
9
10
11
12
13
14
15
16
17      1 Of course, if KinderCare permits a personal care attendant
   to accompany Jeremy, the aide could provide personal services such
18 as diapering or assistance with eating, eliminating KinderCare's
   need to provide these services directly.
19
        KinderCare argues that it would have to supervise the aide very
20 closely, something it suggests would be very burdensome. KinderCare
   has other aides in its program and concedes, as it must, that these
21 aides do not jeopardize the quality or stability of its programs.
   KinderCare has done next to nothing to determine how best to
22 structure its relationship with the aide or with the Alta Center or
   United Cerebral Palsy to ameliorate any of these concerns. Even if
23 a personal care attendant provides services that are different from
   those provided by other aides, there are undoubtedly ways to
24 successfully integrate this kind of service provider into
   KinderCare's program. Under title III's reasonable modification
25 requirement, KinderCare has a duty to explore ways of achieving this
   integration.
26
        2 However, there might be circumstances where diapering older
27 children with disabilities would not be a reasonable modification.
   This is not the case with Jeremy.
28
                                        8
1                               IV. Conclusion.
2       The Court should issue a preliminary injunction to prevent
3  KinderCare from expelling Jeremy and to require KinderCare to permit
4  an aide to accompany him in its after-school program.
5
6  Dated:
7       May 14, 1995                            May , 1995
        Sacramento, CA                          Washington, DC
8
9
10                      Respectfully submitted,
11
        CHARLES J. STEVENS,                     KERRY ALAN SCANLON,
12      United States Attorney,                 Deputy Assistant Attorney
        Eastern Dist. of California                General for Civil Rights
13
14
   By:                                      By:
15      EDMUND F. BRENNAN,                      JOHN L. WODATCH, Chief
        Deputy Civil Chief                      JOAN A. MAGAGNA, Deputy Chief
16      Office of the U.S. Attorney             MARY LOU MOBLEY, Attorney
        Eastern Dist. of California             U.S. Department of Justice
17      555 Capitol Mall, Suite 1150            Civil Rights Division
        Sacramento, CA 95814                    Disability Rights Section
18      Tel: (916) 554-2700                     P.O. Box 66738
                                                Washington, D.C. 20035-6738
19                                              Tel: (202) 307-0663
20
21
22
23
24
25
26
27
28
                                        9
                                IV. Conclusion.
        The Court should issue a preliminary injunction to prevent
KinderCare from expelling Jeremy and to require KinderCare to
permit an aide to accompany him in its after-school program.
Dated:
        May , 1995                              May 17, 1995
        Sacramento, CA                          Washington, DC
                        Respectfully submitted,
        CHARLES J. STEVENS,                     KERRY ALAN SCANLON,
        United States Attorney,                 Deputy Assistant Attorney
        Eastern Dist. of California             General for Civil Rights
   By:                                       By:
        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
                         * * CERTIFICATE OF SERVICE * *
2
        The undersigned hereby certifies that she is an employee in the
3  office of the United States Attorney for the Eastern District of
   California and is a person of such age and discretion as to be
4  competent to serve papers.
5       That on May 19, 1995, she served a copy of the attached:
6
        Reply Brief of the United States as Amicus Curiae in Support of
7               Plaintiff's Motion for Preliminary Injunction
8
   by placing said copy in a postage paid envelope addressed to the
9  person(s) hereinafter listed, by depositing said envelope in the
   United States Mail at Sacramento, California.
10
11 By United States Mail:
12 Victor J. James II
   LITTLER, MENDELSON, FASTIFF
13 TICHY & MATHIASON
   400 Capitol Mall, 16th Floor
14 Sacramento, CA 95814-4410
15 Arlene Brynne Mayerson
   Disability Rights Education & Defense
16 2212 Sixth Street
   Berkeley, CA 94710
17
   Gil A. Abramson
18 HOGAN & HARTSON
   111 S. Calvert Street
19 Suite 1600
   Baltimore, MD 21202
20
   Jennifer Brown
21 ORRICK, HERRINGTON & SUTCLIFFE
   400 Capitol Mall
22 Suite 3000
   Sacramento, CA 95814
23
24
25
                                        Donna M. Perez
26                                     Legal Secretary
27
28
1
2
3
4
5                       IN THE UNITED STATES DISTRICT COURT FOR THE
6                            EASTERN DISTRICT OF CALIFORNIA
7
8  SHERRY ORR, WILLIAM ORR,
9  and JEREMY ORR, through
   his guardian ad litem
10 Elaine Huffstutler,
                                                CIV. NO. S-95-507 EJG/GGH
11              Plaintiffs,
12      v.                                      MEMORANDUM OPINION
                                                AND ORDER
13 KINDERCARE LEARNING CENTERS,
   INC.,
14
                Defendant.
15                              /
16      This matter was before the court on May 26 and June 2, 1995,
17 for hearing on plaintiffs' motion for a preliminary injunction.
18 Cynthia Larsen and Arlene Mayerson appeared on behalf of the
19 plaintiffs. Gil Abramson, Andrew Topping and Victor James
20 appeared on behalf of the defendant. Mary Lou Mobley and
21 Assistant U.S. Attorney Edmund Brennan appeared on behalf of the
22 United States Department of Justice, as amicus curiae. After
23 considering the parties' written and oral arguments and the record
24 in this matter, the court orally granted plaintiffs' motion for a
25 preliminary injunction. The court writes now to confirm its oral
26 ruling and to set forth its findings and conclusions. See Fed. R.
   Civ. P. 52(a); 65(d).
                                  BACKGROUND
1       This is an action by a disabled child and his parents against
2  a daycare center, alleging discrimination on the basis of
3  disability. Plaintiffs contend that defendant has denied
4  plaintiffs the opportunity to participate in or benefit from the
5  services offered by Kindercare, and has failed to make reasonable
6  modifications to its policies, practices and procedures, to enable
7  plaintiffs to benefit from the services offered by Kindercare, in
8  violation of the Americans with Disabilities Act ("ADA") and the
9  Unruh Civil Rights Act.
10      The following facts are taken from the pleadings and the
11 briefs and, for the most part, are undisputed. Plaintiff Jeremy
12 Orr is a nine-year-old boy who suffers from tuberous sclerosis, a
13 developmental disability which causes mental retardation, low
14 vision and mild seizures. Jeremy needs assistance eating, walking
15 and interacting with other persons. In addition, he cannot talk
16 and is not toilet-trained. Since both of Jeremy's parents work
17 full time, he needs care during and after school. During school
18 hours, between 8:30 a.m. and 2:30 p.m., Jeremy attends a special
19 education program at an Elk Grove elementary school. In September
20 1994, Jeremy's parents, plaintiffs Sherry & William Orr, enrolled
21 Jeremy in the Elk Grove Kindercare after school daycare program
22 for approximately three hours per day, from 2:30-5:30 p.m.
23      Kindercare Learning Centers, Inc. is a provider of daycare
24 services, with 1200 locations throughout the United States. The
25 centers located in California are licensed by the State of
26 California. Kindercare provides part-time and full-time daycare
                                        2
1  programs in a group setting for children aged six weeks through
2  five years. In addition, Kindercare offers an after school
3  daycare program, also in a group setting, for children aged five
4  through twelve, attending local elementary schools. The ratio of
5  caregivers to children depends upon the age of the children and
6  the qualifications of the caregiver. The ratios are established
7  by the State and are a licensing criteria. Generally speaking,
8  the younger the child, the greater the number of caregivers since
9  younger children are less self-sufficient and require more
10 individualized attention.
11      Since he was enrolled at Kindercare in September 1994, Jeremy
12 Orr, a nine-year-old, has been placed in the two-year-old room.
13 At Kindercare, the ratio in the two-year-old room is one caregiver
14 for each ten children. In the school age room (ages 5-12) of the
15 after school program, the ratio is one caregiver to every 14
16 children.
17      While no aide or additional staff member was sought by or
18 offered to Jeremy as a condition of enrollment, plaintiffs Sherry
19 and William Orr initiated discussions with Kindercare and Alta
20 California Regional Center to explore the possibility of providing
21 an aide at state expense to attend the Kindercare program with
22 Jeremy. The aide would change Jeremy's diapers and generally
23 assist him as needed to facilitate his participation in the
24 program. At all times the Alta Regional Center has been willing
25 and able to either reimburse Kindercare for the cost of an aide
26 hired by Kindercare to assist Jeremy, or provide an aide at no
                                        3
1  cost to Kindercare through a contract with United Cerebral Palsy
2  Association.
3       On February 17, 1995, without expressly approving or
4  rejecting the request for an aide, Kindercare gave the Orrs 30
5  days notice of Kindercare's intent to terminate Jeremy from the
6  program on the grounds that Kindercare could not meet Jeremy's
7  individualized needs in a group care setting.
8       Kindercare has agreed to allow Jeremy to remain at the center
9  pending a decision on plaintiffs' motion for preliminary
10 injunction. However, Kindercare has refused to either move Jeremy
11 from the two-year old room to the school-age room, or allow an
12 aide to attend the program with Jeremy, pending the hearing.
13                                DISCUSSION
14      Plaintiffs' motion for preliminary injunction seeks four
15 types of preliminary injunctive relief, some of which are
16 prohibitory, and some of which are mandatory. The primary relief
17 sought is an order preventing Kindercare from disenrolling Jeremy
18 during the pendency of this action. Additionally, and apparently
19 equally important, are plaintiffs' requests that Jeremy be placed
20 in an age-appropriate setting, i.e. moved from the two-year old
21 room to the school-age room (5-12 year-olds), and that Kindercare
22 allow an aide to accompany Jeremy during his time at the center.
23 Lastly, plaintiffs seek an order preventing defendant from
24 discriminating against all children with disabilities and
25 directing defendant to implement policies to comply with state and
26 federal laws prohibiting discrimination on the basis of
                                        4
1  disability. This latter request was not reiterated in oral
2  argument and, therefore, was not considered by the court.
3       A.      Role of United States, as Amicus
4       Initially, it is necessary to comment upon the role of the
5  United States in this lawsuit and in connection with the Americans
6  with Disabilities Act, in order to resolve the parties'
7  disagreements concerning how much, if any, deference to accord the
8  government's arguments. Plaintiffs and the government urge the
9  court to give substantial weight to the government's brief,
10 failing to distinguish between the government's interpretation of
11 the ADA and its accompanying regulations, and the government's
12 litigation position advanced in this lawsuit.
13      The United States Attorney General, through the Department of
14 Justice, is charged with enforcing Title III of the ADA. See 42
15 U.S.C. S 12188(b). In that connection, the government has been
16 delegated the responsibility of promulgating regulations to
17 implement these portions of the Act. See 42 U.S.C. S 12186(b).
18 As the agency charged with promulgating implementing regulations,
19 its interpretation of those regulations is entitled to controlling
20 weight, as long as the interpretations are reasonable.
21 Additionally, the regulations themselves, are entitled to
22 substantial deference. See Chevron v. Natural Resources Defense
23 Council, 467 U.S. 837, 844 (1984); Thomas Jefferson University v.
24 Shalala, 114 S.Ct. 2381, 2386 (1994) However, where an agency
25 advances a position for the first time in connection with its role
26 as amicus in ongoing litigation, it is entitled to little, if any,
   weight. See Bowen v. Georgetown University Hospital, 488 U.S.
                                        5
1  204, 212-13 (1988); National Broiler Council v. Voss, 44 F.3d 740,
2  747 n.9 (9th Cir. 1994).
3       While the parties disagree as to the amount of weight to
4  accord the government's fact-specific arguments raised in this
5  case, it is clear that its existing regulations are entitled to
6  substantial deference and its interpretations of those regulations
7  are entitled to controlling weight. Additionally, the
8  government's interpretations of the statute and regulations
9  implemented thereunder, articulated for the first time in this
10 lawsuit, are at the very least, informative and useful.
11      B. Preliminary Injunction Standards
12      In the Ninth Circuit, to prevail on a motion for preliminary
13 injunction, the moving party must demonstrate a likelihood of
14 success on the merits and the possibility of irreparable harm, or
15 that serious questions are raised and the balance of hardships tip
16 in favor of the moving party. See Chalk v. U.S. District Court,
17 840 F.2d 701, 704 (9th Cir. 1988). In addition, when relevant,
18 the public interest is a factor to be considered. See id. at 711.
19 Further, "federal law provides the standards governing injunctive
20 relief with respect to both . . federal and state law claims."
21 Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947,
22 957 (E.D. Cal. 1990).1
23
        1       While the two state claims were touched upon by the
24 plaintiffs in their opening brief, it is clear that for purposes
   of the instant motion, the parties' focus is on the federal claim.
25 Plaintiffs confirmed at oral argument that they were not seeking
   preliminary injunctive relief on their state law claims.
26 Accordingly, only the federal claim has been considered by the
   court.
                                        6
        In this case, as Kindercare points out, plaintiffs' request
1
   for an aide is equivalent to mandatory injunctive relief, for
2
   which plaintiffs bear a higher burden. They must show that both
3
   the facts and law clearly favor their position and that extreme or
4
   very serious damage will result. Anderson v. United States, 612
5
   F.2d 1112, 1115 (9th Cir. 1979). When "a party seeks mandatory
6
   preliminary relief that goes well beyond maintaining the status
7
   quo pendente lite, courts should be extremely cautious about
8
   issuing a preliminary injunction." Martin v. International
9
   Olympic Committee, 740 F.2d 670, 675 (9th Cir. 1984).
10
        Kindercare also argues that plaintiffs' injuries are
11
   compensable by money damages, thus negating the need for mandatory
12
   injunctive relief. However, this is unclear. While plaintiffs
13
   seek unspecified damages in the prayer of their complaint and have
14
   not allocated them between the state and federal claims, money
15
   damages are not available to private plaintiffs under Title III of
16
   the ADA. See 42 U.S.C. S 12188(a)(1) (noting that remedies are
17
   the same as those provided in 42 U.S.C. S 2000a-3(a), which are
18
   limited to injunctive relief and attorneys' fees). Although the
19
   state claims allow recovery of monetary damages, only the federal
20
   claim is before the court on this motion. See footnote no. 1,
21
   supra.
22
        Plaintiffs attempt to escape from the mandatory nature of the
23
   relief sought, and thus the higher burden, by altering the wording
24
   of their request from an order directing Kindercare to allow an
25
   aide to attend with Jeremy, to an order "that Jeremy not be
26
   prevented from attending Kindercare with an aide". However,
                                        7
   creative semantics cannot change the nature of the remedy sought.
1
   Since an aide has never attended with Jeremy during the eight
2
   months he has been enrolled at the center, an injunction requiring
3
   Kindercare to allow an aide to accompany Jeremy alters the status
4
   quo -- no matter how such a request is phrased. Thus, for the
5
   court to issue an order requiring Kindercare to allow Jeremy to
6
   attend with an aide, plaintiffs must meet the heightened burden
7
   for mandatory relief. Likewise, the request for an order
8
   directing Kindercare to move Jeremy to another classroom is also
9
   mandatory in nature and, if granted, would require the court to
10
   micro-manage defendant's business. Since Kindercare knows its
11
   business and asserts that it has a proven track record of
12
   assimilating disabled children into its program, the decision
13
   whether, and when, to move Jeremy should be left to his caregivers
14
   at Kindercare.
15
        C.      Probable success on the merits/serious questions,
16
        Plaintiffs contend they are likely to succeed on the ADA
17
   claim because they have met all its elements. First, Kindercare
18
   is a public accommodation subject to the provisions of Title III
19
   of the ADA. See 42 U.S.C. S 12181(7)(K) (listing day care centers
20
   as public accommodations). This is undisputed by defendant.
21
   Second, plaintiffs argue that Kindercare has violated both the
22
   general and specific prohibitions against discrimination contained
23
   in section 12182. Plaintiffs maintain that Kindercare's refusal
24
   to allow Jeremy to continue to attend the center, which refusal is
25
   admittedly based on the severity of Jeremy's disability, violates
26
   the Act's general prohibition against denial of participation on
                                        8
   the basis of disability. See 42 U.S.C. S 12182(b)(1)(A)(i).2 As
1
   plaintiffs point out, there is no requirement that a disabled
2
   person benefit from a service to the same extent as a non-disabled
3
   person. Rather, the law merely requires that he be given the
4
   opportunity to benefit, to the extent he is able. In addition,
5
   plaintiffs assert that Kindercare's refusal to allow an aide to
6
   attend with Jeremy, violates the Act's specific prohibition
7
   against failing to make reasonable modifications to policies,
8
   practices and procedures to ensure access for disabled persons.
9
   See 42 U.S.C. S 12182(b)(2)(A)(ii).3 Third, plaintiffs Sherry
10
   and William Orr, as Jeremy's parents, contend they are also
11
   protected by the Act which prohibits discrimination based on a
12
   person's association with a person with a disability. See 42
13
14
15
16
17
18
        2       That section, in relevant part, provides:
19
        It shall be discriminatory to subject an individual . .
20      . on the basis of a disability . . . to a denial of the
        opportunity of the individual . . .to participate in or
21      benefit from the . . . services, facilities . . . or
        accommodations of an entity.
22
        3       That section, in relevant part, provides:
23
        [D]iscrimination includes -- (ii) a failure to make
24      reasonable modifications in policies, practices, or
        procedures, when such modifications are necessary to
25      afford such . . . services . . . to individuals with
        disabilities, unless the entity can demonstrate that
26      making such modifications would fundamentally alter the
        nature of such . . . services;
                                        9
   U.S.C. S 12182(b)(1)(E).4 Plaintiffs argue that a public
1
   accommodation such as Kindercare provides services not only to
2
   children, but also to the parents of the children by providing
3
   after school care, a service the parents would otherwise have to
4
   provide themselves.
5
        Defendant raises four arguments in support of its position
6
   that plaintiffs cannot prevail on the merits of their ADA claim.
7
   First, defendant argues that Jeremy requires custodial care and
8
   cannot function in a group setting; therefore, requiring
9
   Kindercare to provide after school care to Jeremy will
10
   fundamentally alter the nature of its services. Since any
11
   fundamental alteration of services is, by definition, not a
12
   violation of the Act, Kindercare argues that plaintiffs have not
13
   shown a likelihood of success on the merits. See 42 U.S.C. S
14
   12182(b)(2)(A)(ii), text in footnote no. 3, supra. Second,
15
   Kindercare asserts that Jeremy's need for custodial care threatens
16
   Kindercare's ability to care for other children and jeopardizes
17
   its student to teacher ratios mandated by state law. Third,
18
   Kindercare maintains that requiring it to allow an aide to
19
   accompany Jeremy is an unreasonable accommodation. Lastly,
20
   Kindercare states that Jeremy's parents have no standing, and are
21
   not proper plaintiffs, under the ADA.
22
23
        4       That section, in relevant part, provides:
24
        (E) ASSOCIATION. It shall be discriminatory to . . .
25      deny equal . . . services . . . to an individual . . .
        because of the known disability of an individual with
26      whom the individual . . . is known to have a
        relationship or association.
                                       10
        For reasons discussed below, both the United States, through
1
   the Disability Rights Section of the Civil Division of the
2
   Department of Justice, and plaintiffs, successfully refute
3
   defendant's first and second arguments in the context of this
4
   motion for preliminary injunctive relief.5 However, the court is
5
   not convinced that plaintiffs have met the higher burden required
6
   for mandatory relief with respect to their request for an aide or
7
   their request that Jeremy be placed in a different classroom;
8
   therefore, these portions of plaintiffs' motion are denied. Nor
9
   is the court satisfied that William and Sherry Orr have standing
10
   to sue in their own right under the ADA. However, since Jeremy's
11
   claim is severable from that of his parents, their failure to
12
   demonstrate a likelihood of success is not fatal to this motion.
13
                a.   Whether allowing Jeremy to attend Kindercare
14                   is "fundamental alteration"
                     of Kindercare's services
15
        In its Technical Assistance Manual the Department of Justice
16
   has defined "fundamental alteration" as a modification so
17
   significant it alters the essential nature of the services
18
   offered. See Title III Technical Assistance Manual, p. 27,
19
   attached as Exhibit A to plaintiffs' motion. The agency's
20
   definition is accorded controlling weight since it is a reasonable
21
   interpretation of the statute and because defendant has interposed
22
   no objection nor offered a different definition. See e.g.,
23
24      5       It is important to stress that the merits of the case are
   not being resolved at this stage of the litigation. Despite the
25 all or nothing approach taken by each side in connection with this
   hearing, neither party has requested, nor has the court ordered,
26 that the motion be converted to a motion for summary judgment.
   See Fed. R. Civ. P. 65(a)(2).
                                       11

   Fiedler v. American Multi-Cinema, Inc., 871 F.Supp. 35, 36-37 n.4
1
   (D.D.C. 1994) (court deems government's publication: The Americans
2
   with Disabilities Act Title III Technical Assistance Manual
3
   Covering Public Accommodations, and Americans with Disabilities
4
   Act Accessibility Guidelines to be regulations and interpretations
5
   of regulations).
6
        Kindercare argues that its primary function is to provide
7
   daycare in a group setting. This service, Kindercare argues,
8
   would be fundamentally altered by Jeremy's presence because he
9
   requires "custodial" care. See e.g., Tronick declaration,
10
   attached as Exhibit E to defendant's opposition ("Jeremy is in
11
   desperate need of custodial services"; "Kindercare does not
12
   provide the type of custodial services of which Jeremy is in
13
   need"). Nowhere in its briefs does Kindercare define this term.
14
   However, by reference to the declarations and depositions of staff
15
   persons, it appears that custodial care means one-on-one
16
   attention. For example, the Director of the Elk Grove Kindercare
17
   states that Jeremy needs custodial care when he is diapered, when
18
   he eats, and when he goes in and out the classroom. See Wilcox
19
   declaration, attached as Exhibit D to defendant's opposition. A
20
   classroom teacher states that Jeremy is incapable of functioning
21
   by himself and needs custodial care. See Hacha declaration,
22
   attached as Exhibit J to defendant's opposition. These same staff
23
   persons also state that Jeremy does not interact with the other
24
   children, and is not capable of engaging in any of the group
25
   activities, thereby suggesting that the group setting is not
26
   appropriate for the personal care Jeremy requires.
                                       12   
        In support of its position that one-on-one assistance is a
1
   fundamental alteration of the nature of its program, defendant
2
   relies heavily on Southeastern Community College v. Davis, a case
3
   decided under the Rehabilitation Act, the forerunner of the ADA.
4
   See 442 U.S. 397 (1979). In fact, at oral argument, Kindercare
5
   said Davis is dispositive of the issue. In that case the Supreme
6
   Court held that the Rehabilitation Act did not require a community
7
   college to admit a hearing disabled individual to its nursing
8
   program where the school's curriculum would have to be changed to
9
   accommodate the student's handicap. Specifically, the school
10
   would have to provide the student with "close" and individual
11
   attention by a nursing instructor" in order to ensure patient
12
   safety in the clinical component of the program. Davis, 442 at
13
   409. Alternatively, the plaintiff argued that the school could
14
   alter its program and allow the student to matriculate absent
15
   participation in the clinical classes. The court concluded that
16
   "[s]uch a fundamental alteration in the nature of a program is far
17
   more than the 'modification' the regulation requires." Id. at 410.
18
        Relying on this language, defendant argues that Jeremy's
19
   disability precludes him from participating in the after school
20
   daycare program at Kindercare unaided and that providing the
21
   personal one-on-one services he requires is a fundamental
22
   alteration in the program. Davis cannot be analogized to the
23
   instant facts as easily as defendant maintains. That case
24
   involved an academic program, with a structured curriculum and
25
   several component parts, one of which required the school to teach
26
   and the students to learn how to ensure the safety of other
                                     13
   persons. Kindercare's after school daycare program contains no
1
   similar requirements.
2
        Kindercare's own staff members concede that the after school
3
   portion of its program is non-academic. Therefore, Davis is
4
   inapposite. While Kindercare is to be lauded for its attempts to
5
   integrate a curriculum similar to its full time daycare into the
6
   after school setting, the evidence does not support the effort.
7
   The after school component of Kindercare's program is just that --
8
   a time for unwinding and relaxation from the rigors of a
9
   structured classroom. Between 3:00 and 6:00 p.m., children are
10
   engaged in less structured "free play". See Hacha deposition,
11
   23:8.
12
        Kindercare also relies on 28 C.F.R. section 36.306 which
13
   states that a public accommodation is not required to provide its
14
   participants with services of a personal nature including
15
   assistance in eating, toileting, or dressing. What defendant
16
   fails to point out is that the "no personal service" regulation
17
   applies only to facilities which do not provide the personal
18
   service as part of their standard operating procedures. "Of
19
   course, if personal services are customarily provided to the
20
   customers or clients of a public accommodation, e.g., in a
21
   hospital or senior citizen center, then these personal services
22
   should also be provided to persons with disabilities using the
23
   public accommodation." 28 C.F.R. pt.36, Appendix B, at p. 614
24
   (July 1, 1994).
25
        In a daycare setting, much like a hospital or senior citizen
26
   center, providing assistance with eating, toileting and dressing
                                       14
   is a normal part of the service provided. All children under the
1
   age of three need help with these basic functions. Since
2
   providing these personal services to children under three years of
3
   age is part of Kindercare's normal program, plaintiffs have made
4
   a strong showing that it is a reasonable modification, but not a
5
   fundamental alteration, for Kindercare to provide these services
6
   to an older child like Jeremy who needs the services, not because
7
   of his age, but because of his disability. The Department of
8
   Justice is in agreement. "[W]here a program serves both infants
9
   (who require diapering) and school age children, it seems
10
   reasonable to provide diapering service for a school age child
11
   with a disability even if in another classroom." Letter of
12
   December 8, 1994, from John Wodatch, Civil Rights Division, U.S.
13
   Department of Justice, to Abby Cohen, Child Care Law Center,
14
   attached as Exhibit A to Mayerson declaration.
15
        Presumably the best way to assess whether Jeremy's attendance
16
   at Kindercare has caused a fundamental alteration in the essential
17
   nature of its services, is to evaluate his eight months at the
18
   center. In this connection, plaintiffs' evidence paints an
19
   entirely different picture of Jeremy than that portrayed by
20
   defendant. Both his pediatrician and his pediatric neurologist
21
   have certified that Jeremy can attend Kindercare without
22
   limitations and that his disability "does not render [him] unable
23
   to participate in daycare." See Chretein and Lee declarations.
24
        Additionally, Jeremy's inactivity and lack of interaction
25
   with other children appears to be attributable to a greater extent
26
   to defendant that to Jeremy's disability. Depositions of
                                       15
   Kindercare staff persons, as well as declarations of educational
1
   consultants hired by plaintiffs in connection with this lawsuit to
2
   observe Jeremy at Kindercare, reveal the following. Since
3
   attending Kindercare, Jeremy has not engaged in any behavior which
4
   necessitates constant one-on-one attention by a staff person. In
5
   fact, Jeremy has been pretty much left to his own devices,
6
   unattended and isolated on a rug. To the extent other children
7
   seek to interact with Jeremy, they have been discouraged from
8
   doing so. The staff, as well, leave Jeremy alone, and do not
9
   attempt to engage him in any of the activities. Jeremy's
10
   caregivers state that after their initial efforts to involve him
11
   in classroom activities failed, they made no further attempts.
12
        Plaintiffs, however, submit evidence diametrically opposed to
13
   that submitted by defendant, which refutes the contention that
14
   Jeremy is unable to participate in group activities and needs
15
   constant one-on-one care. The most telling is the declaration of
16
   Jeremy's special education teacher, Jan Donough. Based on her
17
   observations of Jeremy on a daily basis for the past 18 months in
18
   a group setting, Donough states that Jeremy does not pose a
19
   behavioral problem and that he does interact with other children
20
   and reacts well to encouragement and guidance. While Jeremy's
21
   response to and participation in a special education class cannot
22
   be viewed in the same light as his participation at Kindercare,
23
   the programs are not intended to provide the same type of
24
   services.
25
        While the parties dispute whether Jeremy derives any benefit
26
   from the daycare program, defendant has not shown that Jeremy's
                                       16
   presence has or will require Kindercare to alter the nature of its
1
   group daycare setting. No evidence has been presented to suggest
2
   that in the eight months Jeremy has attended Kindercare he has
3
   been disruptive, engages in inappropriate behavior, or otherwise
4
   distracts from the nature of the after school daycare services
5
   provided. In other words, defendant has offered no evidence that
6
   Jeremy's presence has caused a "modification that is so
7
   significant that it alters the essential nature of the . . .
8
   services . . . offered." See Title III Technical Assistance
9
   Manual, p. 27, attached as Exhibit A to plaintiff's motion.
10
   Kindercare was, before Jeremy enrolled, and continues to be, a
11
   provider of, among other things, after school daycare in a group
12
   setting. In the context of this motion Kindercare has not shown
13
   that Jeremy's attendance at the center fundamentally alters this
14
   service.
15
                b.   Whether Jeremy's presence
16                   jeopardizes student/teacher ratios
17      Next, Kindercare argues that Jeremy's constant need for
18 custodial care places Kindercare at risk of violating the teacher
19 to student ratio provisions on which Kindercare's state license
20 depends. This argument is unsupported by any evidence.6
21
        6       Kindercare states that Jeremy's need for diapering in a
22 bathroom stall instead of on the diaper changing table in the
   classroom where the teacher can remain in full view of the class,
23 requires the classroom teacher to leave the other children
   unattended for short periods of time and has forced Kindercare to
24 decrease the number of children in the two-year-old classroom.
   See Wilcox deposition, 60:5-19. However, evidence was presented
25 that the student/teacher ratio was adjusted in the two-year-old
   room for reasons unrelated to Jeremy's diapering needs. See
26 Wilcox deposition, 63:15 - 64:8. Moreover, the evidence shows
   that when any child requires one-on-one attention of more than
                                       17
                c.   Whether allowing an aide is an
1                    unreasonable accommodation
2       Kindercare's objection to an aide contains three components,
3  the thrust of each of which is that requiring Kindercare to allow
4  an aide to accompany Jeremy is an unreasonable accommodation.7
5  First, Kindercare contends that an aide must be supervised by a
6  teacher, thus reducing the teacher's ability to attend to the
7  other children in the class. This argument is both speculative,
8  and unsupported by any evidence in the record.
9       Second, Kindercare argues that requiring it to allow an aide
10 to assist Jeremy would expose Kindercare to a substantial risk of
11 liability. The essence of this argument seems to be that under
12 California law Kindercare would be legally responsible for
13 ensuring the mental and physical fitness of the aide, even though
14 he or she is not a Kindercare employee.
15      Kindercare's concerns have not been fully explored by the
16 parties because Kindercare terminated Jeremy prior to resolution
17 of the issue. However, as the evidence submitted by plaintiffs
18 establishes, one of the alternatives proposed by plaintiffs is
19 that Kindercare take on the responsibility of hiring the aide and
20 receive reimbursement for the aide's salary from the Alta Regional
21 Center. See Caple declaration. This would allow Kindercare to
22 utilize its own hiring criteria as well as retain control over the
23
   five minutes, another staff person is called into the classroom in
24 order to maintain the correct student/teacher ratios. See Mercado
   deposition, 72: 1-15.
25
        7       Since Title III of the Act speaks in terms of reasonable
26 "modification", not "accommodation", defendant presumably intends
   the terms to be used interchangeably in its brief.
                                       18
   aide. The other alternative, that the aide be supplied by the
1
   Cerebral Palsy Association, also at no cost to Kindercare, would
2
   relieve Kindercare of the responsibility of going through the
3
   interview/hiring process. Utilization of either of these
4
   alternatives appears to alleviate Kindercare's financial and legal
5
   concerns. Now, since Jeremy will be allowed to remain at
6
   Kindercare pending the outcome of this litigation, the parties are
7
   free to discuss these concerns on their own, but are not directed
8
   to do so.
9
        Lastly, Kindercare argues that even if Jeremy's presence
10
   alone does not fundamentally alter its program, the presence of an
11
   aide with Jeremy would do so since the aide would be providing
12
   Jeremy one-on-one attention not required by or provided to any of
13
   the other daycare participants. Kindercare's position is
14
   difficult to reconcile with its own ADA policies, which reveal
15
   that Kindercare has no per se ban on the use of aides to assist
16
   disabled children enrolled at the daycare centers. As its ADA
17
   policy manual relates, after obtaining information about the
18
   aide's employment status, Kindercare staff are directed to discuss
19
   the issue with Kindercare's Risk Management division. See
20
   Kindercare and the ADA, attached as Exhibit 5 to Mercado
21
   deposition, at p. 5-006.8
22
23      8       At the hearing, last-minute evidence presented by
   plaintiffs suggests that the position taken by defendant with
24 respect to use of an aide is contrary not only to Kindercare's ADA
   policy statement, but to its position on the same issue in another
25 lawsuit in which Kindercare is being sued for violation of the
   ADA. See Roberts v. Kindercare, 3-CIV-94-1379 (D. Minn.) "Answers
26 to Plaintiffs' First Set of Interrogatories", attached as Exhibit
   B to "Notice of Filing of Documents", filed by plaintiffs June 2,
                                       19
        Plaintiffs respond that the use of an aide, much like a
1
   guide dog for a sight-impaired individual, or a wheelchair for a
2
   physically handicapped person, is but a reasonable modification to
3
   defendant's practices and procedures which Kindercare is required
4
   to provide, or allow, under the ADA. The court is not convinced
5
   that plaintiffs have shown a probability of success on this
6
   portion of their motion. Since introduction of an aide would be
7
   a change from the status quo, plaintiffs are required to show that
8
   the facts and law clearly favor their position. Because this is
9
   a fact-specific case, with hotly disputed issues on both sides,
10
   there is an insufficient evidentiary record from which the court
11
   can determine at this stage that an aide is, in fact, a reasonable
12
   modification required by the ADA. What constitutes a reasonable
13
   modification is at the very heart of this lawsuit and must await
14
   resolution on the merits.
15
                d.   Whether the parents of a disabled child
16                   have standing to sue under the ADA in
                     their own right
17
        Kindercare argues that plaintiffs Sherry and William Orr are
18
   not likely to prevail on their claim of discrimination based on
19
   their association with a disabled child. Defendant offers no
20
   support for this position other than pointing out that the facts
21
   of this case are not identical to the examples of associational
22
   discrimination listed in the regulations. See 28 C.F.R. S 36.205;
23
   28 C.F.R. pt. 36, Appendix B, at 598 (July 1, 1994) (Violation of
24
25 1995. Since neither the court nor the parties have had an
   opportunity to study this evidence or reflect upon its impact on
26 the instant motion, it has not been considered by the court in
   reaching its decision.
                                       20
   Act for daycare center to deny services to sibling of an HIV
1
   infected child). Plaintiffs and the Department of Justice argue
2
   that a daycare is more than just a service to children, but also
3
   to their parents; therefore, Kindercare's disenrollment of Jeremy
4
   based on his disability constitutes discrimination against his
5
   parents as well. Here, where the agency articulates its position
6
   for the first time in its amicus brief, its interpretation, while
7
   informative and useful, is not entitled to controlling weight.
8
        While plaintiffs have not made a robust showing of likelihood
9
   of prevailing on the merits of their discrimination by association
10
   claim, they have raised litigable questions. Their position,
11
   adopted by the Department of Justice, is at least plausible.
12
   Whether plaintiffs Sherry and William Orr, as parents of a
13
   disabled child, will ultimately prevail on their claim under the
14
   Act will turn on the definition of the term "services" in the
15
   statute, and whether it can be construed to encompass not only the
16
   services directly provided to children attending a daycare center,
17
   but also the benefits of those services received by the parents.
18
        D.      Irreparable harm/balance of hardships
19
        At the hearing plaintiffs argued for the first time that
20
   irreparable harm is presumed and need not be affirmatively
21
   demonstrated since the ADA specifically provides injunctive relief
22
   as a remedy. However, the cases cited for this proposition do not
23
   involve the ADA, or any similar statute prohibiting
24
   discrimination, and are therefore inapposite. See United States
25
   v. City & County of San Francisco, 310 U.S. 16, 30-31 (1940);
26
                                       21
   Trailer Train Co. v. State Board of Equalizatiom, 697 F.2d 860
1
   (9th Cir. 1983).
2
        To take plaintiffs' argument to its logical conclusion would
3
   completely eviscerate the irreparable harm component of the
4
   preliminary injunction test. It is doubtful this is what the
5
   courts had in mind in the cases cited, nor have plaintiffs shown
6
   otherwise. "The grant of jurisdiction to ensure compliance with
7
   a statute hardly suggests an absolute duty to do so under any and
8
   all circumstances, and a federal judge sitting as chancellor is
9
   not mechanically obligated to grant an injunction for every
10
   violation of law." Weinberger v. Romero-Barcelo, 456 U.S. 305,
11
   313 (1982). Thus, despite statutes which specifically authorize
12
   injunctive relief as a remedy for their violation, such as the one
13
   at issue in the Trailer Train case, the court retains and "must
14
   still exercise its sound discretion in granting injunctive
15
   relief." Mayo v. U.S. Government Printing Office, 839 F.Supp.
16
   697, 700 (N.D. Cal. 1992), aff'd, 9 F.3d 1450 (9th Cir. 1993).
17
   Accordingly, absent compelling authority to the contrary, the
18
   court will apply the traditional two part test for preliminary
19
   injunctive relief utilized by the Ninth Circuit in cases of this
20
   type for many years.
21
        While defendant contends and plaintiffs do not dispute that
22
   damages are recoverable under the state law claims, those claims
23
   have not been analyzed by the court in connection with the instant
24
   motion. The parties focused their analysis on the federal claim,
25
   which does not provide for monetary damages. Accordingly, with
26
   respect to the ADA, plaintiffs have no adequate remedy at law.
                                       22
        If Kindercare is allowed to disenroll Jeremy, plaintiffs
1
   describe the following hardships. First, assuming William and
2
   Sherry Orr have standing under the ADA, they assert that
3
   alternative care is unavailable and that they will suffer the
4
   financial and emotional hardship associated with leaving
5
   employment in order to stay home with Jeremy in the afternoons.
6
   While Kindercare questions this conclusion, it offers no evidence
7
   that alternative care is available for Jeremy.
8
        Second, the parents and the Department of Justice surmise
9
   that Jeremy, too, will suffer if he is disenrolled. Like most
10
   children, he thrives on and needs stability and consistency in his
11
   life. If a routine in which he has been engaged for eight months
12
   is suddenly removed from his life, it is possible he will suffer
13
   some developmental setbacks. Kindercare, on the other hand,
14
   concludes that since Jeremy is obtaining absolutely no benefit
15
   from the program now, his removal from it will not cause any
16
   detriment. Of course, Kindercare's conclusion is based on the
17
   faulty premise that because Jeremy does not interact with the
18
   other children or participate in the group activities, he must not
19
   be gaining any benefit. As discussed above, the evidence suggests
20
   that Jeremy's lack of interaction is attributable to a greater
21
   extent to Kindercare, than to Jeremy's disability. Moreover, his
22
   mother and elementary school teacher report that he is achieving
23
   some benefit from the program, albeit minimal, and that he is
24
   capable of obtaining much more with the assistance of an aide.
25
        Kindercare has demonstrated no hardships other than its
26
   unsupported conclusion that Jeremy's presence constitutes a
                                       23
   fundamental alteration of its after school daycare program.
1
   However, this contention has already been discussed and rejected.
2
   While the existence of irreparable injury to any of the plaintiffs
3
   is questionable, the hardships clearly tip in their favor.
4
        F.      Public Interest
5
        "[T]he district court must always consider whether the public
6
   interest would be advanced or impaired by issuance of an
7
   injunction in any action in which the public interest is
8
   affected." Caribbean Marine Services Co. v. Baldridge, 844 F.2d
9
   668, 677 (9th Cir. 1988). Kindercare argues that private entities
10
   who offer public accommodations should not be forced to include
11
   disabled persons into programs which cannot meet their needs.
12
   However, Kindercare has not shown that Jeremy's after school
13
   daycare needs are not met in its daycare center. Whether Jeremy's
14
   participation in the program can be enhanced, and whether
15
   Kindercare is required by the ADA to take steps to ensure the
16
   enhancement, have not yet been determined. Given the evolving
17
   state of the law with respect to integration of disabled persons
18
   into the mainstream, public policy favors granting the injunction.
19
                                  CONCLUSION
20
   Kindercare's assertions that it has an extensive ADA policy
21
   and currently provides daycare to thousands of disabled children
22
   suggests that all parties share the same goals -- to assimilate
23
   disabled children into mainstream environments, to the extent
24
   possible, and to make all children color blind to discrimination.
25
   That is, all children, whether disabled or not, would benefit from
26
   integrating a disabled child into Kindercare's after school
                                        24
   daycare program. Kindercare's own ADA policies state that "[i]t
1
   is very important for caregivers . . . and children to focus on
2
   the CHILD, not the disability" and that "[c]hildren with
3
   disabilities are children like all others." Kindercare and the
4
   ADA, attached as Exhibit 5 to Mercado deposition, p. 5-003
5
   (emphasis in original). To this end, exposing, familiarizing and
6
   educating staff and participants to the existence of disabled
7
   persons in their lives would actually enrich, rather than detract
8
   from, the time spent by all children in the after school daycare
9
   program.
10
        Plaintiffs' motion for a preliminary injunction is granted.
11
   Defendant is directed to retain Jeremy at its Elk Grove facility
12
   pending a determination of the merits of this litigation.
13
   Plaintiffs' request for a mandatory injunction requiring
14
   Kindercare to allow an aide to attend with Jeremy, is denied. The
15
   court is not convinced that plaintiffs have met their higher
16
   burden of demonstrating that the facts and law clearly demonstrate
17
   entitlement to relief. A determination of whether Jeremy's
18
   presence with an aide fundamentally alters Kindercare's after
19
   school group care setting, and whether use of an aide is a
20
   reasonable modification, are issues which require a complete
21
   evidentiary record and which may ultimately turn on the
22
   credibility of various witnesses. Plaintiffs' further request for
23
   an order directing Kindercare to move Jeremy to the school-age
24
   classroom is not ordered, but is to be explored by the parties.
25 ///
26 ///
                                       25
                                      ORDER
1
        1.      In order to accurately document the court's appointment
2
   of Elaine Huffstutler as guardian ad litem, the caption of the
3
   complaint is modified to read as follows: SHERRY ORR; WILLIAM
4
   ORR; and JEREMY ORR, a minor, through his guardian ad litem Elaine
5
   Huffstutler. The parties shall reflect this change in all future
6
   documents filed with the court.
7
        2.      Kindercare is ordered to retain Jeremy at its Elk Grove
8
   center pending resolution of the merits of this litigation.
9
        3.      Kindercare shall make available to Jeremy, to the extent
10
   practicable, all opportunities that are made available to other
11
   children attending the after school daycare program at the Elk
12
   Grove center.
13
        4.      Plaintiffs' request for an order directing Kindercare to
14
   allow an aide to attend with Jeremy pending resolution of the
15
   merits of this lawsuit, is denied.
16
        5.      Plaintiffs' request for an order directing Kindercare to
17
   move Jeremy to an age-appropriate classroom pending resolution of
18
   the merits of this lawsuit, is denied. However, the parties are
19
   directed to explore this action.
20
        6.      Kindercare shall inform and make available to all its
21
   staff at the Elk Grove center, copies of Kindercare and the ADA.
22
        7.      Plaintiffs are not required to post a bond. Kindercare
23
   did not request the posting of security, nor has it offered any
24
25
26
                                       26
   proof that it will incur damages if it is later found to have been
1
   wrongfully enjoined.
2
        IT IS SO ORDERED.
3
        Dated: June 9, 1995
4
5
6                                               EDWARD J. GARCIA, JUDGE
                                                UNITED STATES DISTRICT COURT
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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                                       27
1  KERRY ALAN SCANLON, Deputy Assistant
   Attorney General for Civil Rights
2  JOHN L. WODATCH, Chief,
   JOAN A. MAGAGNA, Deputy Chief,
3  MARY LOU MOBLEY, Attorney
   Disability Rights Section
4  Civil Rights Division
   United States Department of Justice
5  P.O. Box 66738
   Washington, DC 20035-6738
6  Tel: (202) 307-0663
7  CHARLES J. STEVENS
   United States Attorney,
8  EDMUND F. BRENNAN,
   Deputy Civil Chief,
9  650 Capitol Mall
   Sacramento, CA 95814
10 Tel: (916) 554-2700
11
12                      IN THE UNITED STATES DISTRICT COURT
13                     FOR THE EASTERN DISTRICT OF CALIFORNIA
14
15 SHERRY A. ORR as Guardian ad
   Litem for JEREMY ORR, a Minor                        CIV-S-95-507 EJG PAN
16 Child; SHERRY A. ORR; and WILLIAM
   ORR,
17              Plaintiffs,
18.     v.
19 KINDER CARE LEARNING CENTERS,
20 INC.,
21
22
23                     UNITED STATES' BRIEF AS AMICUS CURIAE
24                IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY
25                    INJUNCTION AND REQUEST FOR ORAL ARGUMENT
26
                                        DATE: May 26, 1995
27                                      TIME: 9:00 a.m.
                                        PLACE: Courtroom No. 4
28
1                                 TABLE OF AUTHORITIES
2                                         CASES
3  Anderson v. Little League Baseball, Inc.,
        794 F. Supp. 342 (D. Ariz. 1992) . . . . . . . . . . . . . . . . 25
4  Bowles v. Seminole Rock & Sand Co.,
5       325 U.S. 410 (1945) . . . . . . . . . . . . . . . . . . . . . . . 2
6  California v. American Stores Co.,
        872 F.2d 837 (9th Cir. 1989), rev'd on other grounds,
7       495 U.S. 271 (1990) . . . . . . . . . . . . . . . . . . . . . .  27
8  Caribbean Marine Services Co., Inc. v. Baldridge,
9       844 F.2d 668 (9th Cir. 1988) . . . . . . . . . . . . . .  7, 25, 28
   Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
10      Inc.,
        467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . 2
11 Fiedler v. American Multi-Cinema, Inc.,
12      871 F. Supp. 35 (D.D.C. 1994) . . . . . . . . . . . . . . . . . . 2
13 Half Moon Bay Fishermans' Marketing Ass'n v. Carlucci,
        857 F.2d 505 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . .7
14 Lyng v. Payne,
15      476 U.S. 926 (1986) . . . . . . . . . . . . . . . . . . . . . . . 2
16 Martin v. Occupational Safety and Health Review Comm'n,
        499 U.S. 144 (1991)  . . . . . . . . . . . . . . . . . . . . . . .2
17 Northern Alaska Environmental Center v. Hodel,
18      803 F.2d 466 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . .7
19 Petersen v. University of Wis. Bd. of Regents,
        818 F. Supp. 1276 (W.D. Wis. 1993) . . . . . . . . . . . . . . . .2
20 Staron v. McDonald's Corp.,
21      1995 WL 14875 (2d Cir. April 4, 1995) . . . . . . . . . . . .19, 21
22 Stinson v. United States,
        113 S. Ct. 1913 (1993) . . . . . . . . . . . . . . . . . . . . . .2
23 The Fund for Animals, Inc. v. Lujan,
24      962 F.2d 1391 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . 7
25 Thomas Jefferson Univ. v. Shalala,
        114 S. Ct. 2381 (1994) . . . . . . . . . . . . . . . . . . . . . .2
26 Udall v. Tallman,
27      380 U.S. 1 (1965) . . . . . . . . . . . . . . . . . . . . . . . . 2
28 United States v. Morvant,
                                       ii
1       No. CIV-A-93-3251, 1995 WL 131093 (E.D. La. March 22,
        1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
2  United States v. Odessan Union Warehouse Co-op,
3       833 F.2d 172 (9th Cir. 1987) . . . . . . . . . . . . . . . . 25, 28
4                                     RULES
5  28 C.F.R. pt. 36 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16
6  28 C.F.R. pt. 36, App. B . . . . . . . . . . . . . . . . . . . . . 16-18
7  28 C.F.R. S 36.104 . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8  28 C.F.R. S 36.201(a) . . . . . . . . . . . . . . . . . . . . . . .8, 10
9  28 C.F.R. S 36.203(b) . . . . . . . . . . . . . . . . . . . . . . . . 17
10 28 C.F.R. S 36.203(c)(1) . . . . . . . . . . . . . . . . . . . . . . .17
11 28 C.F.R. S 36.205 . . . . . . . . . . . . . . . . . . . . . . . . 8, 21
12 28 C.F.R. S 36.302 . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
13 28 C.F.R. S 36.306 . . . . . . . . . . . . . . . . . . . . . . . . . .18
14 28 C.F.R. S 36.501 . . . . . . . . . . . . . . . . . . . . . . . . . .24
15 STATUTES
16 20 U.S.C. S 1491a(c)(6) . . . . . . . . . . . . . . . . . . . . . . . 27
17 42 U.S.C. S 12101(2) . . . . . . . . . . . . . . . . . . . . . . . . . 8
18 42 U.S.C. S 12112(b)(4) . . . . . . . . . . . . . . . . . . . . . . . 21
19 42 U.S.C. S 12181(7)(K) . . . . . . . . . . . . . . . . . . . . . . .  8
20 42 U.S.C. SS 12181-89 . . . . . . . . . . . . . . . . . . . . . . . .  1
21 42 U.S.C. S 12182(a) . . . . . . . . . . . . . . . . . . . . . . . 8, 10
22 42 U.S.C. S 12182(b)(1)(A)(i) . . . . . . . . . . . . . . . . . . . .  9
23 42 U.S.C. S 12182(b)(1)(C) . . . . . . . . . . . . . . . . . . . . .  17
24 42 U.S.C. S 12182(b)(1)(E) . . . . . . . . . . . . . . . . . . . . 8, 21
25 42 U.S.C. S 12182(b)(2)(A)(ii) . . . . . . . . . . . . . . . . . . 9, 10
26 42 U.S.C. S 12186(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2
27 42 U.S.C. S 12188(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 24
28 42 U.S.C. S 12206(c)(3) . . . . . . . . . . . . . . . . . . . . . . .  3 
                                      iii
1  KERRY ALAN SCANLON, Deputy Assistant
   Attorney General for Civil Rights
2  JOHN L. WODATCH, Chief,
   JOAN A. MAGAGNA, Deputy Chief,
3  MARY LOU MOBLEY, Attorney
   Disability Rights Section
4  Civil Rights Division
   United States Department of Justice
5  P.O. Box 66738
   Washington, D.C. 20035-6738
6  Tel: (202) 307-0663
7  CHARLES J. STEVENS
   United States Attorney,
8  EDMUND F. BRENNAN,
   Deputy Civil Chief,
9  650 Capitol Mall
   Sacramento, CA 95814
10 Tel: (916) 554-2700
11
12                     IN THE UNITED STATES DISTRICT COURT
13                    FOR THE EASTERN DISTRICT OF CALIFORNIA
14
15 SHERRY A. ORR as Guardian ad
   Litem for JEREMY ORR, a Minor                CIV-S-95-507 EJG PAN
16 Child; SHERRY A. ORR; and WILLIAM
   ORR,                                         UNITED STATES' BRIEF AS
17                                              AMICUS CURIAE IN SUPPORT OF
                Plaintiffs,                     PLAINTIFFS' MOTION FOR
18                                              PRELIMINARY INJUNCTION AND
        v.                                      REQUEST FOR ORAL ARGUMENT
19 KINDER CARE LEARNING CENTERS,
20 INC.,
21
22      This case was filed by Jeremy Orr, a nine-year old child with a
23 disability, and his parents, against KinderCare Learning Centers,
24 Inc., the owner and operator of an after-school child care program
25 in Elk Grove, California, in which Jeremy has been enrolled since
26 September 1994. Plaintiffs allege that KinderCare's decision in
27 February 1995 to expel Jeremy constitutes discrimination on the
28 basis of disability in violation of title III of the Americans with
                                        1
1  Disabilities Act of 1990 ("ADA"), 42 U.S.C. SS 12181-89.1
2  Plaintiffs' motion for a preliminary injunction is now before the
3  Court, scheduled for hearing on May 26, 1995. The United States
4  requests that it be allowed to present oral argument at that time.
5       As amicus curiae, the United States urges the Court to grant
6  Plaintiffs' motion to enjoin KinderCare from expelling Jeremy from
7  its after-school program. The principal legal issues presented by
8  this motion involve the meaning of title III and the Department of
9  Justice's implementing regulation. On both of these issues, the
10 Department of Justice's interpretation is entitled to substantial
deference.
11
12      1       Although Plaintiffs seeks redress for violations of the
   ADA and California law, the United States' brief addresses only
13 those issues arising under the ADA.
14      2       Pursuant to statutory directive, 42 U.S.C. S 12186(b), the
   Department of Justice promulgated regulations to implement title III
15 of the ADA. See 28 C.F.R. pt. 36. Accordingly, the title III
   regulation is entitled to substantial deference. See Chevron,
16 U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
   837, 844 (1984) (where Congress expressly delegates authority to an
17 agency to issue legislative regulations, the regulations "are given
   controlling weight unless they are arbitrary, capricious, or
18 manifestly contrary to the statute."). See also Petersen v.
   University of Wis. Bd. of Regents, 818 F. Supp. 1276, 1279 (W.D.
19 Wis. 1993) (applying Chevron to give controlling weight to
20 Department of Justice interpretations of title II of the ADA).
21      The Department's interpretation of the regulation is also
   entitled to deference. Courts should grant controlling weight to
22 such interpretations unless they are plainly erroneous or
   inconsistent with the regulation. Thomas Jefferson Univ. v. Shalala,
23 114 S. Ct. 2381, 2386 (1994) (citing Martin v. Occupational Safety
   and Health Review Comm'n, 499 U.S. 144, 150-51 (1991); Lyng v.
24 Payne, 476 U.S. 926, 939 (1986); Udall v. Tallman, 380 U.S. 1, 16
   (1965); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
25 (1945)); Stinson v. United States, 113 S. Ct. 1913, 1919 (1993). See
   also Fiedler v. American Multi-Cinema, Inc., 871 F. Supp. 35, 36-37
26 n.4 (D.D.C. 1994) (granting controlling weight to the Department of
   Justice's Technical Assistance Manual for Title III of the ADA
27 ("Technical Assistance Manual"), stating that the Department, as
   author of the title III regulation, is the principle arbiter of its
28                                                      (continued...)
                                        2
1       As discussed below, Plaintiffs have demonstrated that they are
2  substantially likely to succeed on the merits of their ADA claims,
3  that they will suffer irreparable harm if Jeremy is expelled, that
4  the harm to Plaintiffs outweighs the minimal harm to KinderCare if
5  the Court orders KinderCare to retain Jeremy, and that public policy
6  strongly favors granting a preliminary injunction in favor of
7  Plaintiffs.
8                                    I. FACTS
9       Plaintiffs are Jeremy Orr and his parents, William and Sherry
10 Orr. The Orrs live in the Sacramento area, where William and Sherry
11 both work full-time. Complaint at P 5; S. Orr Decl. at P 1.3 The
12 Orrs require after-school care for Jeremy. Complaint at P 5.
13 Jeremy is a nine-year old child who has been diagnosed with
14 tuberous sclerosis, a genetic disability that has resulted in mental
15 retardation, low vision, and mild seizures. S. Orr Decl. at P 2.
16 Jeremy needs diapering, and, while he can walk and eat by himself,
17 he benefits from assistance with these and other activities. Wilcox
18 Decl. at PP 3, 5.
19      He has attended public school from age 2-1/2 through an early
20 intervention program. Complaint at P 7; S. Orr Decl. at P 3. Jeremy
21 now attends a special education class at the Markofer Elementary
22 School, a mainstream public elementary school operated by the
23
24      2 (...continued)
25 meaning and should be accorded substantial deference in interpreting
   its regulation). The Technical Assistance Manual was also issued
26 pursuant to statutory mandate. 42 U.S.C. S 12206(c)(3).
27      3       The United States relies on the declarations provided by the
   parties, attached to the Plaintiffs' Motion for Preliminary
28 Injunction and Defendant's Opposition thereto.
3
1  Sacramento Office of Education. S. Orr at P 3. He has been there
2  since November 1993. Donough Decl. at PP 1-2. The special education
3  class meets weekdays 8:30 a.m. to 2:30 p.m. Complaint at P 7.
4  Jeremy's teacher, Jan Donough, believes that he has shown
5  significant improvement since November 1993 and that he is a well-
6  liked member of the school community. Donough Decl. at PP 2, 3, 6.
7  The Orrs have been pleased with his progress. Complaint at P 7.
8  Jeremy has non-disabled 'student buddies' with whom he eats and
9  plays during the lunch hour. Donough Decl. at P 4. He is able to
10 participate in both structured and unstructured activities, enjoys
11 interacting with other children, and responds to staff members'
12 directions. Id. at PP 3, 4. He has participated in a whole range of
13 activities in his special education program, including swimming,
14 horseback riding, and shopping. Id. at P 5.
15      Jeremy needs after-school care for approximately three hours
16 each school day and all day during school vacations. Donough Decl.
17 at PP 3, 7. He began attending KinderCare's after-school program in
18 Elk Grove, California, on September 13, 1994. S. Orr Decl. at P 7.
19      KinderCare is a publicly traded Delaware corporation that
20 offers full-time child care for preschoolers and after-school care
21 for school-age children at approximately 1200 centers in roughly 40
22 states. Complaint at P 4; Answer at P 4; Mercado Decl. at P 3;
23 Opposition at 2-4. KinderCare is licensed by the California
24 Department of Human Services to provide day care services throughout
25 California. Complaint at P 4. It provides age-specific group
26 educational programs designed to lead to social, physical,
27 emotional, and intellectual growth. Mercado Decl. at PP 6-7. These
28 programs are built upon monthly topics and weekly themes such as
                                        4
1  transportation, seasons, colors, numbers, pets, safety, shapes, and
2  sizes. Id. at P 6. There are group activities such as music and
3  fingerpainting as well as individual discovery areas. Id.
4       KinderCare states that it will enroll children with
5  disabilities as long as they can participate in group activities.
6  Mercado Decl. at P 11. KinderCare evaluates each situation on a
7  case-by-case basis. See KinderCare's form entitled, "Physician's
8  Recommendation for Placement in Group Child Care," attached as
9  Exhibit A-4 to Plaintiff's Memorandum in Support of Motion for
10 Preliminary Injunction. KinderCare states that since its inception
11 in 1969, it has enrolled many children with disabilities including
12 those with cancer, asthma, cerebral palsy, cystic fibrosis,
13 hemophilia, diabetes, and epilepsy. Mercado Decl. at P 10.
14 KinderCare states that it routinely provides diapering services for
15 children with disabilities -- presumably referring to children, like
16 Jeremy, who are older than others who customarily require those
17 services. See Muscari Decl. at PP 10, 11; Opposition at 5.
18 KinderCare states, however, that it does not provide "custodial
19 care" to children with disabilities, but it fails to define that
20 term, except to say that its program is not custodial care. See,
21 e.g., Tronick Decl. at P 8.
22      The parties disagree over the degree to which Jeremy is capable
23 of interacting with other children and staff in the KinderCare
24 program and the degree to which he is benefitting from the program.
25 KinderCare personnel assert that Jeremy does not communicate with or
26 interact with the other children and further, that he is incapable
27 of participating in any of the regularly scheduled KinderCare group
28 activities. Wilcox Decl. at PP 4, 6, and 7; Hacha Decl. at P 4.
                                        5
1  Even if these observations of Jeremy's behavior in KinderCare are
2  accurate, it appears that he is able to participate in group
3  activities if he is given some direction, such as that which could
4  be provided by a personal care attendant. Jeremy's parents and his
5  public school teacher state that with motivation, Jeremy is capable
6  of and, in fact, enjoys group activities such as eating, playing,
7  and otherwise interacting with other children and adults. S. Orr
8  Decl. at P 3; Donough Decl. at PP 3-6. In fact, Sherry Orr believes
9  that Jeremy has enjoyed his time at KinderCare, has been able to
10 make friends easily, and has responded well to the program. S. Orr.
11 Decl. at PP 7, 13.
12      Some time after Jeremy's enrollment at KinderCare, his parents,
13 KinderCare, and Polly Caple, a service coordinator from a private,
14 non-profit State-funded agency ("the Alta Center"), began discussing
15 the possibility of having the Alta Center provide -- free of charge
16 -- a personal care attendant for Jeremy's use while at KinderCare.
17 S. Orr Decl. at P 11; Caple Decl. at PP 4-8.4 No aide was ever
18 placed in service to work with Jeremy. Answer at P 13. The Orrs
19 and KinderCare disagree whether an aide would foster Jeremy's
20 participation in KinderCare's program. Compare S. Orr Decl. at
21 PP 19-20 to Tronick Decl. at P 6. The Alta Center continues to be
22 ready and willing to provide such an aide at no cost to KinderCare.
23 Caple Decl. at P 8.
24      On February 15, 1995, KinderCare informed the Orrs in writing
25 that it was no longer willing to care for Jeremy, stating:
26
27      4       The aide would be selected and trained by the United Cerebral
28 Palsy Association. Caple Decl. at P 8.
                                        6
1       . . . in order to meet Jeremy's needs, he requires more
        attention than is possible for us to offer in group care. In
2       fact, you have asked that we provide a care giver solely for
        Jeremy, or a one to one ratio, so that Jeremy may participate
3       in our program. Since the nature of our child care center is
        group care, where we can meet the needs of the children
4       attending in a group setting, it is not possible to accommodate
        your request.
5
   (Letter from Janice Tronick, Regional Manager of KinderCare, to Mr.
6
   and Mrs. Orr, dated Feb. 15, 1995, attached to Memorandum of Points
7
   and Authorities in Support of Plaintiffs' Motion for Preliminary
8
   Injunction ("KinderCare Expulsion Letter")). KinderCare's decision
9
   was made despite the Alta Center's ongoing offer to pay for and
10
   provide a personal care attendant for Jeremy's use while at
11
   KinderCare. Caple Decl. at PP 6-8. Jeremy continues to attend the
12
   KinderCare program pending a resolution of Plaintiff's Motion for
13
   Preliminary Injunction. Opposition at 8.
14
                                  II. ANALYSIS
15
        To obtain a preliminary injunction, Plaintiffs must demonstrate
16
   either (1) a likelihood of success on the merits and a possibility
17
   of irreparable injury, or (2) the existence of serious questions on
18
   the merits and a balance of hardships tipping in its favor. The Fund
19
   for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992),
20
   citing Half Moon Bay Fishermans' Marketing Ass'n v. Carlucci, 857
21
   F.2d 505, 507 (9th Cir. 1988). These are not distinct legal
22
   standards, but extremes of a single continuum. Id. In cases where
23
   the public interest is involved, the district court must also
24
   examine whether the public interest favors the plaintiff. Id.,
25
   citing Caribbean Marine Services Co., Inc. v. Baldridge, 844 F.2d
26
   668, 674 (9th Cir. 1988); Northern Alaska Environmental Center v.
27
   Hodel, 803 F.2d 466, 471 (9th Cir. 1986). Each of these factors is
28
                                        7
1  analyzed below.5
2       A. JEREMY ORR IS LIKELY TO PREVAIL ON HIS ADA CLAIMS.
3               1.      KinderCare's decision violates title III's general
                        prohibitions of discrimination and denial of services
4                       on the basis of disability and, more particularly,
                        title III's requirement to make reasonable
5                       modifications in policies, practices and procedures.
6       Title III's general prohibition of discrimination on the basis
7  of disability requires public accommodations to provide people with
8  disabilities the "full and equal enjoyment of [their] goods and
9  services."6 Section 302(a) provides:
10      General rule. No individual shall be discriminated
        against on the basis of disability in the full and equal
11      enjoyment of the goods, services, facilities, privileges,
        advantages, or accommodations of any place of public
12      accommodation by any person who owns, leases (or leases
        to), or operates a place of public accommodation.
13
   42 U.S.C. S 12182(a) (emphasis added); see also 28 C.F.R.
14
   S 36.201(a). Discrimination under this general provision is defined
15
   to include, inter alia, a denial of an opportunity to participate in
16
17
        5       While KinderCare argues that Plaintiffs seek extraordinary
18 relief in the form of a mandatory injunction that goes "well beyond
   maintaining the status quo pendente lite" (Opposition at 10), the
19 core injunctive relief sought by Plaintiffs is to maintain the
   status quo: to keep Jeremy in KinderCare's program. The only
20 affirmative relief sought by Plaintiffs -- requiring KinderCare to
   allow a personal care attendant to accompany Jeremy -- should
21 alleviate, rather than aggravate, any hardship to Kindercare that
   might occur by retaining Jeremy pending a trial on the merits.
22
        6       There is no dispute that KinderCare is subject to the
23 requirements title III imposes on public accommodations. 42 U.S.C.
   S 12181(7)(K); 28 C.F.R. S 36.104. Complaint at PP 4, 7; Answer at
24 PP 4, 17. Nor does KinderCare contest that Jeremy is a person with
   a disability, 42 U.S.C. S 12101(2); 28 C.F.R. S 36.104 (def. of
25 disability), or that its decision to expel Jeremy affects his
   parents, 42 U.S.C. S 12182(b)(1)(E); 28 C.F.R. S 36.205. Complaint
26 at P 15; Answer at P 15. Likewise, Defendant admits that its
   decision to expel Jeremy was based on its opinion that, given the
27 nature of his disability, he was unable to participate in group
   activities and needed "custodial care." Opposition at 2 et seq.
28
                                        8
1  or benefit from a public accommodation's goods and services. 42
2  U.S.C. S 12182(b)(1)(A)(i). More specifically, title III prohibits
3  a failure to make reasonable modifications in policies, practices,
4  and procedures where necessary to ensure full and equal enjoyment.
5  42 U.S.C. S 12182(b)(2)(A)(ii). This section defines discrimination
6  to include:
7       a failure to make reasonable modifications in policies,
        practices, or procedures, when such modifications are
8       necessary to afford such goods, services, facilities,
        privileges, advantages, or accommodations to individuals
9       with disabilities, unless the entity can demonstrate that
        making such modifications would fundamentally alter the
10      nature of such goods, services, facilities, privileges,
        advantages, or accommodations.
11
   42 U.S.C. S 12182(b)(2)(A)(ii); see also 28 C.F.R. S 36.302.7
12
        The reasonable modification requirement of section
13
   302(b)(2)(A)(ii) is not without limitation -- modifications are not
14
   required if they would fundamentally alter the nature of a public
15
   accommodation's goods or services or would otherwise be unreasonable
16
   and they do not have to be made if doing so would pose a direct
17
   threat to others.
18
        Congress' intent when passing the ADA was to "bring individuals
19
   with disabilities into the economic and social mainstream of
20
   American life." S. Rep. No. 116, 101st Cong., 1st Sess., at 58
21
   (1989) (Labor and Human Resources). The fundamental alteration
22
   defense ensures that even in pursuit of this goal, public
23
   accommodations will not have to make fundamental changes to the
24
   nature of their goods or services. The principles underlying the
25
26
        7       The reasonable modification provision should be construed so
27 that it is consistent with the "full and equal enjoyment" mandate
   underlying the more general section. See Technical Assistance Manual
28 at S III-3.1000.
                                        9
1  notion of "fundamental alteration" are, simply put, that the
2  alteration is not mandatory if it would require a public
3  accommodation to provide an altogether different kind of good or
4  service than it typically provides.8
5       In addition to determining whether a modification fundamentally
6  alters a public accommodation's program, the Court must determine
7  whether the modifications are "reasonable." 42 U.S.C.
8  S 12182(b)(2)(A)(ii); 28 C.F.R. S 36.302. As with other specific
9  anti-discrimination provisions of title III, the requirement that
10 modifications be "reasonable" must be read in conjunction with title
11 III's underlying mandate to provide persons with disabilities the
12 "full and equal enjoyment" of a public accommodation's goods and
13 services. 42 U.S.C. S 12182(a); 28 C.F.R. S 36.201(a).
14      Under the reasonable modification provision, modifications are
15 generally required when they are necessary to allow persons with
16 disabilities to have the full and equal enjoyment of an entity's
17 goods and services. Entities must replace their "business as usual"
18
        8       Congress clarified the scope of the fundamental alteration
19 defense by giving several examples. First, a physician who
   specializes in treating burn victims "could not refuse to treat a
20 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.
21 Rep. No. 116, 101st Cong., 1st Sess. at 62, 63 (1989) (Labor and
   Human Resources); see also H.R. Rep. No. 485 (II), 101st Cong., 2d
22 Sess. at 105, 106 (1990) (Education and Labor).
23 Second, a drug rehabilitation clinic could refuse to treat a
   person who was not a drug addict but could not refuse to treat an
24 addict simply because the client had a positive HIV status. S. Rep.
   No. 116, 101st Cong., 1st Sess. at 63 (Labor and Human Resources);
25 see also H.R. Rep. No. 485 (II), 101st Cong., 2d Sess. at 106 (1990)
   (Education and Labor). Accord United States v. Morvant, No. CIV-A-
26 93-3251, 1995 WL 131093 (E.D. La. March 22, 1995) (granting United
   States' motion for summary judgment against a dentist who refused to
27 provide routine dental care to patients who were HIV positive or who
   had AIDS).
28
                                       10
1  approach with an effort to determine how they can provide meaningful
2  opportunities for persons with disabilities to access the goods and
3  receive the services that other non-disabled Americans receive.
4       Most reasonable modifications are simple and common sense
5  responses to the individualized needs of persons with disabilities,
6  as in the case of permitting a person of the opposite gender to
7  assist an individual with a disability in a single-sex toilet room,
8  allowing persons to bring food into cinemas if needed for medical
9  reasons, modifying a "no pets" rule to allow service animals, or
10 allowing persons with disabilities to go on amusement park rides
11 without waiting in line if necessary to accommodate their
12 disability.9 Other modifications required by section
13 302(b)(2)(A)(ii) would also be 'reasonable' if they are not too
14 dissimilar from the services routinely provided to non-disabled
15 customers. For instance, physicians must assist patients with
16 disabilities with dressing and undressing and child care centers
17 must relax their diapering eligibility requirements for older
18 children with disabilities.
19      As Congress recognized, the very reason that the ADA was needed
20 was because "business as usual" deprived persons with disabilities,
21 and children with severe disabilities in particular, with meaningful
22 opportunities to be integrated into the mainstream of American life.
23 As Senator Dodd stated:
24              Mr. President, as chairman of the Subcommittee on Children
        and Families, I would like to address the important changes
25      that this bill will bring about in the daily lives of children
26
27      9       Technical Assistance Manual at S III-4.2100. These
   interpretations of "reasonable modifications" should be accorded
28 controlling weight. See supra at n.2.
                                       11
1       with disabilities and their families. The Americans with
        Disabilities Act will create an expanded community for children
2       with disabilities and their families. The bill is a statement
        that we want their participation and that they have a place
3       among all of us. The ADA requires that children with
        disabilities, regardless of the severity of their disability,
4       be permitted to utilize the same public services that others
        without disabilities utilize as a matter of course.
5
                They are to be permitted to utilize the same health
6       clinics, day care centers, playgrounds, schools, restaurants,
        and stores that they would normally utilize, in their
7       communities, if they were not disabled. Children will have new
        social and recreational and educational opportunities that most
8       Americans take for granted. No longer will children be
        subjected to forced busing programs outside their neighborhoods
9       because that is where the "handicapped" program is located.
10 135 Cong. Rec. S10721, S10722 (daily ed. Sept. 7, 1989) (Statement
11 of Sen. Dodd) (emphasis added). Senator Dodd's comments reiterate
12 the theme that integration is the hallmark of compliance under the
13 ADA.
14              2.      Jeremy Orr's continued participation in the
                        KinderCare program does not create a fundamental
15                      alteration in the program.
16      KinderCare offers after-school care and daycare for children.
17 A variety of activities are offered but KinderCare is not a school
18 with an academic curriculum. Plaintiffs have not asked KinderCare
19 to change its curriculum in any respect to accommodate Jeremy.
20 KinderCare can and does continue to provide child care for non-
21 disabled children with Jeremy in the program and it can continue to
22 provide its group activities to other children even if Jeremy is not
23 fully participatory. Nothing in the record suggests that Jeremy's
24 presence detracts from the ability of other children to participate
25 fully in the activities provided by KinderCare.
26      KinderCare is not being asked to change the basic nature of its
27 child care services. For instance, KinderCare has not been asked to
28 provide a remedial educational program, physical therapy, tactile
                                       12
1  stimulation, feeding therapy, speech therapy, or any other
2  disability-specific curriculum for Jeremy, in which case it could
3  have argued that the nature of its program had been fundamentally
4  altered from general child care to something else. Likewise,
5  KinderCare has not been asked to provide extensive medical care for
6  Jeremy, in which case it could have argued that its program had been
7  fundamentally altered from child care to pediatric medicine.10 If,
8  instead of being asked to supervise a child with a disability,
9  KinderCare was requested to provide daytime care for an elderly
10 person, it could argue that to do so would fundamentally alter its
11 program: KinderCare does not routinely provide care for geriatric
12 adults, regardless of disability. Moderate alterations to the
13 nature of a public accommodation's goods and services must be
14 tolerated -- and, indeed, are often required -- by title III; to
15 disregard this congressional directive would be to eviscerate title
16 III's mandate of integration.
17      KinderCare's argument regarding fundamental alteration is based
18 primarily on its assertions that Jeremy cannot participate in group
19 activities and that he requires "custodial care."11 First, based on
20
21      10      Child care centers must provide medical services that are
   necessary to integrate children with disabilities, as long as those
22 procedures meet the standards set forth for other modifications of
   policies, practices, and procedures, i.e., the standards of
23 fundamental alteration, reasonableness, and direct threat. For
   instance, child care centers may be required to dispense pre-
24 measured doses of medication on a regular basis. KinderCare
   indicates that it does this routinely for children with
25 disabilities. Muscari Decl. at S 10; Opposition at 5.
26      11      The heart of KinderCare's argument is that Jeremy requires
   "custodial care," something that it deems incompatible with its
27 group child care setting. KinderCare and its declarants use
   "custodial care" as though it were a legal term of art, endowed with
28                                                      (continued...)
                                       13
1  the public school teacher's assessment of his capabilities and his
2  record of achievements in that setting, Jeremy is capable of
3  interacting with other children in group settings. Donough Decl. at
4  PP 2-6. Second, if a personal aide were permitted to assist him in
5  the KinderCare program, such an aide would direct and motivate
6  Jeremy's participating in group activities. But, in any event, even
7  with a more limited level of participation, Jeremy is benefitting
8  from the KinderCare program. While KinderCare believes that the
9  only way to benefit from its program is to participate actively in
10 group activities, children can derive other types of benefits --
11 such as modeling and increased stimulation -- from observing others'
12 activities. The benefit these children receive is as valuable to
13 them as is the benefit received by children who actively participate
14 in group activities. As Jeremy's mother observes:
15              13.   I believe that Jeremy has responded well to his
        time with KinderCare. As recently as February 24, 1995, I
16      was told by "Miss Gloria," a KinderCare staff person that
        Jeremy had been very active all afternoon, getting up and
17      walking all around the classroom. That same day, "Miss
        Becky," another KinderCare staff person, commented on how
18      much the children liked Jeremy. Previously, on January
        26, 1995, both "Miss Gloria" and "Miss Sharon," yet
19      another KinderCare worker commented on how alert and
        active Jeremy had been lately, and said that his seizures
20      appeared to be occurring less frequently. . . . From
        speaking with the people at KinderCare, it appears that
21      Jeremy has become very comfortable there. I also know
22
23      11(...continued)
   a precise meaning. See, e.g., Opposition at 2, 7-9, 11-14, 17-26,
24 28-29; Tronick Decl. at PP 7, 8; Wilcox Decl. at PP 4-8; Hacha Decl.
   at P 4; Mercado Decl. at PP 7, 13. "Custodial care" is not found
25 anywhere in the ADA or the Department of Justice title III
   regulation. Nowhere does KinderCare define the term except to
26 contrast "custodial care" to "group" child care. The United States
   will assume that the term as used by KinderCare means supervision
27 given on a one-to-one ratio, combined with the delivery of some
   personal services such as feeding and diapering, rather than the
28 institutionalization or hospitalization of a child.
                                       14
1       from his school experience that Jeremy is stimulated to
        engage in more age-appropriate behavior when he is with
2       other children who are good role models for him. . . .
3               16.   Jeremy has benefitted, with or without
        assistance, from being placed in group settings with non-
4       disabled children. When Jeremy was about three years old,
        he was placed in a day care center with non-disabled
5       children. In his three years at that placement, it was
        evident that he benefitted from being exposed to non-
6       disabled children. Jeremy's father and I witnessed, along
        with the child care providers, that Jeremy's ability to
7       model the actions of the non-disabled children was a key
        to his success during that period. Jeremy's ability to
8       model stimulated him, helped him to begin walking, and
        made him significantly more mobile.
9
   S. Orr. Decl. at PP 13, 16.
10
        Jeremy is, in fact, benefitting from the KinderCare program
11
   and, with an aide, could benefit even more. However, even if Jeremy
12
   may not be able to develop to the same degree or in the same manner
13
   as non-disabled children given the nature of his disability, he is
14
   legally entitled to an opportunity to benefit to the extent that he
15
   is able. KinderCare states that its overall goal "is to help the
16
   children develop and grow." Opposition at 4. The extent to which
17
   children are able to develop and grow is properly measured by
18
   degrees, not by reference to some artificially absolute standard.
19
   Different children benefit to a different extent and manner when
20
   participating in group child care programs. It is important to note
21
   that "'full and equal enjoyment' under title III does not encompass
22
   the notion that persons with disabilities must achieve the identical
23
   result or level of achievement of nondisabled persons, but [it] does
24
   mean that persons with disabilities must be afforded equal
25
   opportunity to obtain the same result." S. Rep. No. 116, 101st
26
   Cong., 1st Sess. at 60 (1989) (Labor and Human Resources); H.R. No.
27
28
                                       15
1  485 (II), 101st Cong., 2d Sess. at 101 (1990) (Education and
2  Labor).12
3       The attitude displayed by the KinderCare employees who "were
4  shocked at the severity of Jeremy's disability and neither could
5  understand why his parents sought the services of KinderCare since
6  it was apparent, to them, that Jeremy was in need of custodial care,
7  not group daycare," (Opposition at 7; Tronick Decl. at P 5; Mercado
8  Decl. at P 5) displays the kind of paternalism that Congress sought
9  to redress with the passage of the ADA. Section 302(b) of the ADA
10 "[i]s intended to prohibit the exclusion and segregation of
11 individuals with disabilities and the denial of equal opportunities
12 enjoyed by others, based on, among other things, presumptions,
13 patronizing attitudes, fears, and stereotypes about individuals with
14 disabilities." 28 C.F.R. pt. 36, App. B at 596 (July 1, 1994)
15 ("Preamble").
16      By arguing that Jeremy requires "custodial care," KinderCare
17 seems to imply that he should be in a specialized program for
18 children with disabilities. Even if Jeremy might benefit from a
19
20      12      For example, a gym could not use a person's mobility
21 impairment as a rationale for excluding the person from an exercise
   class; it is not enough to argue that the person with a disability
22 cannot do all of the exercises and derive the same result from the
   class as persons without disabilities. H.R. Rep. No. 485 (III),
23 101st Cong., 2d Sess. at 55 (1990) (Judiciary); see also H.R. Rep.
   No. 485 (IV), 101st Cong., 2d Sess. at 57 (1990) (Energy and
24 Commerce). Likewise, a symphony orchestra could not exclude a deaf
   patron on the basis of his disability, assuming for him that he
25 could not benefit in any way from attending a concert. He may
   indeed benefit from the experience, even if the experience he has
26 and the benefit he receives are different from those of other
   audience members. It is for people with disabilities, not public
27 accommodations, to determine whether or not they will benefit from a
   good or service.
28
                                       16
1  specialized program and one was available, the availability of
2  specialized programs for persons with disabilities, whether from the
3  same entity or other businesses, does not relieve a public
4  accommodation from its legal obligation to provide access to its
5  standard program.13 As the Department has recognized:
6       [t]his is an important and overarching principle of the
        Americans with Disabilities Act. Separate, special, or
7       different programs that are designed to provide a benefit
        to persons with disabilities cannot be used to restrict
8       the participation of persons with disabilities in general,
        integrated activities.
9
                . . . Modified participation for persons with
10      disabilities must be a choice, not a requirement."
11 Preamble at 596.
12      KinderCare further argues that it is unreasonable to require it
13 to retain Jeremy in its program because doing so lowers the
14 caregiver-to-child ratio below the 1:12 level required by California
15 law. Opposition at 19-20, citing Cal. Code Regs. tit. 22,
16 S 101179(b)(5) (1994). This issue does not arise, however, if
17 Jeremy is allowed to be accompanied by a personal care attendant,
18 because KinderCare employees would not be focusing disproportionate
19 attention on Jeremy. Furthermore, although Kindercare has had
20 Jeremy in its program since September 1994, it has not alleged that
21 it was notified by any licensing official that its license was put
22
23      13      See 42 U.S.C. S 12182(b)(1)(C) ("Notwithstanding the
24 existence of separate or different programs or activities provided
   in accordance with this section, an individual with a disability
25 shall not be denied the opportunity to participate in such programs
   or activities that are not separate or different."); 28 C.F.R.
26 S 36.203(b) (using the statutory language); see also 28 C.F.R.
   S 36.203(c)(1) ("Nothing in this part shall be construed to require
27 an individual with a disability to accept an accommodation, aid,
   service, opportunity, or benefit available under this part that such
28 individual chooses not to accept.").
                                       17
1  in any jeopardy by Jeremy's presence.
2       Finally, KinderCare argues that it is under no legal obligation
3  to provide personal services for Jeremy or other persons with
4  disabilities. Opposition at 13-14. The Department's title III
5  regulation generally exempts public accommodations from having to
6  provide personal services to persons with disabilities. 28 C.F.R.
7  S 36.306. "Personal services" include assistance with toileting,
8  dressing, or eating. Id. This exemption, however, does not apply
9  when personal services are routinely provided to others:
10      Of course, if personal services are customarily provided
        to the customers or clients of a public accommodation,
11      e.g., in a hospital or senior citizen center, then these
        personal services should also be provided to persons with
12      disabilities using the public accommodation.
13 Preamble at 614. Child care centers like KinderCare, who have
14 programs for young children, routinely provide diapering and other
15 personal services in their normal course of business. Here, where
16 the very nature of child care requires KinderCare to provide non-
17 disabled children with personal services such as diapering,
18 toileting assistance, assistance with eating, etc., these services
19 must be provided to children with disabilities as well. Indeed,
20 KinderCare indicates that it routinely provides these services to
21 children with disabilities. Opposition at 5; Muscari Decl. at PP 10,
22 11.
23              3.      The presence of a personal care attendant for
                        Jeremy does not create a fundamental alteration
24                      in KinderCare's program.
25      KinderCare maintains that it is unreasonable to require it to
26 allow a third party -- a personal care attendant trained by United
27 Cerebral Palsy ("UCP") and provided free of charge by the Alta
28 Center -- on KinderCare's premises on a routine basis for the
                                       18
1  following reasons: (1) KinderCare's supervision of a personal care
2  attendant for Jeremy would distract teachers from other students;
3  (2) the aide would not be under KinderCare's control; and (3) the
4  aide might not meet KinderCare's standards.
5       KinderCare does not, and indeed cannot, state that an aide will
6  not increase Jeremy's level of participation in KinderCare's group
7  activities: KinderCare has never allowed the Orrs or the Alta Center
8  to provide an aide to accompany Jeremy, so it has no basis on which
9  to make such a determination. "[T]he determination of whether a
10 particular modification is 'reasonable' involves a fact-specific,
11 case-by-case inquiry that considers, among other factors, the
12 effectiveness of the modification in light of the nature of the
13 disability in question . . . " Staron v. McDonald's Corp., 1995 WL
14 14875 (2d Cir. April 4, 1995) (citations omitted). Jeremy's
15 experiences as observed by his public school teacher and parents
16 indicate that his level of interaction is likely to increase with
17 the presence of an aide who can help motivate his participation in
18 group activities.
19      As to KinderCare's first defense, the presence of a well-
20 trained aide should enhance, rather than distract KinderCare
21 employees' ability to concentrate on other children. It is
22 important to note that KinderCare has not stated that it never
23 allows volunteer aides to help care for other children. In fact,
24 California law encourages private child care centers to help train
25 caregivers through volunteer apprenticeships. Cal. Code Regs. tit.
26 22 S 10136.5(b)(c) (1994). The supervisory responsibilities
27 associated with these volunteers would likely be greater than those
28 associated with the supervision of a professional, trained personal
                                       19
1  care attendant for Jeremy.
2       Secondly, KinderCare's argument regarding its alleged lack of
3  control over the aide (Opposition at 21) is undercut by the fact
4  that KinderCare has not explored reasonable ways to address this
5  legitimate concern. For instance, KinderCare and the Alta Center
6  could structure an arrangement under which KinderCare would be
7  delegated the authority to fire or discipline the aide if he or she
8  did not behave appropriately. Of course, while the Department
9  believes that it is neither a fundamental alteration nor an
10 unreasonable modification to permit a personal care attendant to
11 attend to Jeremy while at KinderCare, if a particular aide behaves
12 in a manner that is incompatible with the safe operation of
13 KinderCare's program, the company may refuse to admit that
14 attendant.
15      Lastly, KinderCare argues that it "would face a substantial
16 risk of liability" if it allowed Jeremy to be accompanied by an
17 aide, because it would be legally responsible "for ensuring that
18 this aide is physically, mentally, and occupationally capable."
19 Opposition at 21. KinderCare notes that it has an extensive list of
20 requirements for faculty personnel, including aides, such as on-the-
21 job training, health screening, and a criminal record clearance. Id.
22 at 22 n.10, citing Cal. Code Reg. tit. 22, SS 101216, 101316.3.
23 Public accommodations may generally require personal care attendants
24 to meet the legitimate health, safety, and educational standards set
25 for their own employees. As discussed above, KinderCare has not
26 indicated that it made any effort to determine whether the personal
27 care attendant identified by the Alta Center and trained by UCP
28 meets these specifications. Nor is there anything in the record to
                                       20
1  suggest that KinderCare has inquired as to the nature of the
2  training provided by UCP, or whether UCP or the Alta Center conducts
3  its own health, safety, and criminal background inspections of
4  personal care attendants. Thus, KinderCare's objections are merely
5  theoretical ones which are not borne out by the facts in this case.
6  As the Second Circuit noted in Staron, a determination of whether a
7  particular modification is reasonable should be decided on specific
8  facts, not conjecture or speculation. Staron v. McDonald's Corp.,
9  1995 WL 146875 (2d Cir. April 4, 1995).
10      B.      WILLIAM AND SHERRY ORR ARE LIKELY TO PREVAIL ON THEIR
                CLAIM OF DISCRIMINATION ON THE BASIS OF ASSOCIATION.
11
        Jeremy's parents allege that they are being denied daycare
12
   services because of their relationship with Jeremy. Complaint at
13
   P 16. Section 302(b)(1)(E) of title III prohibits discrimination
14
   against individuals who are associated with persons with
15
   disabilities:
16
                It shall be discriminatory to exclude or otherwise
17      deny equal goods, services, facilities, privileges,
        advantages, accommodations, or other opportunities to an
18      individual or entity because of the known disability of an
        individual with whom the individual or entity is known to
19      have a relationship or association.
20 42 U.S.C. S 12182(b)(1)(E); see also 28 C.F.R. S 36.205. Cf. 42
21 U.S.C. S 12112(b)(4) (prohibiting employment discrimination based on
22 known association with person with a disability).
23      In a very real sense, the after-school program offered by
24 KinderCare is as much a service to parents as it is to children.
25 Day care allows parents to work full-time without having to leave
26 their children unattended. KinderCare's program is routinely
27 available to the parents of non-disabled children, and, if the
28 company is allowed to expel Jeremy, this service will be denied to
                                       21
1  his parents. Sherry Orr and Polly Caple have both stated that
2  quality after-school care is extremely difficult to find in the
3  Sacramento area.14 S. Orr Decl. at P 15; Caple Decl. at P 9. Sherry
4  Orr has stated that she would have to quit working full-time if
5  KinderCare is allowed to expel Jeremy.15
6       In fact, if this Court were to countenance Jeremy's expulsion,
7  it is likely that some child care providers who currently accept
8  children with severe disabilities into their programs out of a
9  perceived legal duty will not continue to do so. This will deprive
10 not only the children with disabilities of the benefits of child
11 care, but their parents as well.
12      C.      THE BALANCE OF HARDSHIPS WEIGHS HEAVILY IN FAVOR OF
                PLAINTIFFS.
13
                1.   Jeremy and his parents will suffer irreparable injury
14                   if expelled from KinderCare's after-school program.
15      Due to the nature of Jeremy's disability, it takes him a long
16 time to adjust to new surroundings. He has become familiar and
17 comfortable with the KinderCare program. Decl. of S. Orr at P 13.
18 His seizures appear to be occurring with less frequency. Id. The
19 longer he is in a setting, the more engaged he becomes, both
20 independently and with others. Id. As his mother has noted:
21              17.   Jeremy has some difficulty adjusting to changes in
22
23      14      As discussed above, even if quality care for children with
   disabilities is widely available, KinderCare cannot use this fact as
24 a pretext on which to expel Jeremy.
25      15      According to a recent study, fully thirty-one percent (31%)
   of mothers of children with severe disabilities report that they are
26 unemployed due to a lack of available child care. Dale Bordon Fink,
   "My Life Was Turned Upside Down . . . ": Child Care and Employment
27 Among Mothers of Young Children with Disabilities. Wellesley College
   Center for Research on Women, Working Paper Series, No. 232 (1991)
28 at 10.
                                       22
1       his physical settings. In general, Jeremy needs consistency
        and stability. Changes in his routine and environment are
2       stressful for him and he tends to withdraw and be less
        inquisitive. It often takes him a long time to get comfortable
3       in a new setting. In time, Jeremy has become acquainted with
        both the children and the staff and the physical environment at
4       KinderCare. KinderCare's staff has commented to me that Jeremy
        has become increasingly more alert in the classroom and that he
5       is well-liked among the children.
6               18.   If Jeremy is disenrolled from KinderCare I believe he
        will experience a real set-back with respect to his increasing
7       sociability and motivation to participate.
8  Decl. of S. Orr at PP 17-18. Taking Jeremy out of the KinderCare
9  environment (in which he has been since last September) pending a
10 determination of the merits of Plaintiffs' ADA claims would cause
11 him undue distress that could not later be redressed through legal
12 remedies. An injunction is the only appropriate means of ensuring
13 that his development is not stifled during this formative stage of
14 his life. KinderCare states, "The only consequence of such a ruling
15 will be that Plaintiffs will have to seek alternative care -- care
16 which is available in the surrounding community." Opposition at 28.
17 Contrary to KinderCare's assertion, the record reflects that the
18 Orrs are likely to have an extremely difficult time finding
19 alternative child care for Jeremy. S. Orr Decl. at P 15; Caple Decl.
20 at P 9.16
21
22      16      Polly Caple, who has been Jeremy Orr's service coordinator at
   the Alta Center since 1990, states:
23
                I have spoke [sic] at some length with the Orrs about
24      their difficulty in finding appropriate child care for
        Jeremy. I am aware that over the years they have had an
25      extremely difficult time with this. They have explored
        every avenue and have run into a series of problems
26      including unreliable providers, inadequate programs or
        staffing and most of all prejudice against including [sic]
27      children with disabilities. I am also aware that if
        Jeremy is terminated from KinderCare it will be very
28                                                     (continued...)
1       Finally, title III of the ADA does not allow private plaintiffs
2  to collect monetary damages. 42 U.S.C. S 12188(a)(1); 28 C.F.R.
3  S 36.501. Instead, their only available remedies are injunctive
4  relief and attorneys fees. Thus, Plaintiffs have no adequate remedy
5  at law for KinderCare's violations of title III. None of them could
6  be compensated under the ADA for emotional distress or pain and
7  suffering, nor could William and Sherry Orr be compensated for any
8  lost salary associated with caring for Jeremy.
9               2.   KinderCare will not suffer irreparable injury if
                     the Court enjoins it from expelling Jeremy.
10
        Enjoining KinderCare from expelling Jeremy from its program
11
   preserves the status quo -- the traditional purpose of a preliminary
12
   injunction. The only harm KinderCare alleges it may suffer if the
13
   status quo is preserved is a generalized fear that doing so may
14
   compromise its license, a fear that is unsupported by the record.
15
   There are neither supporting affidavits from KinderCare personnel
16
   nor statements from licensing officials that indicate that Jeremy's
17
   presence in any way compromises KinderCare's license. In fact, the
18
   record supports the opposite conclusion. KinderCare has retained
19
   Jeremy in its program since September 1994 and has not indicated
20
   that it has received a single warning, censure, or other action from
21
   State licensing officials.
22
        Likewise, KinderCare does not provide facts to support its
23
24
        16 (...continued)
25      detrimental for him and an extreme hardship for the
        family. It is very difficult to find appropriate child
26      care in this area, and I think it will be nearly
        impossible for the family to find appropriate alternative
27      afterschool care if Jeremy is forced to leave KinderCare.
28      Caple Decl. at P 9.
                                       24
1  claim that allowing an aide to accompany Jeremy will be detrimental
2  to its program, although this does occasion a change in the status
3  quo. KinderCare's defense is based on speculation and conjecture.
4  It has not engaged in meaningful discussions with the Alta Center or
5  UCP to determine their practices regarding hiring, conducting
6  background investigations, or training of personal care attendants.
7  It has not asked to interview or meet with prospective aides. It
8  has not discussed whether they are willing to delegate to KinderCare
9  the authority to discipline or fire an aide. It has not provided
10 its hiring qualifications to the Alta Center or UCP and had those
11 organizations refuse to find someone who meets the criteria. Also,
12 KinderCare has not been asked to subsidize the aide's salary, so it
13 would suffer no financial harm by allowing an personal care
14 attendant to accompany Jeremy. Instead of articulating concrete
15 harms it would suffer, KinderCare simply hypothesizes that "to do so
16 would open up a Pandora's box for KinderCare from which it could
17 never escape." Opposition at 29.
18      D.      PUBLIC POLICY STRONGLY FAVORS GRANTING THE INJUNCTION.
19      The public interest "is an important consideration in the
20 exercise of equitable discretion in the enforcement of statutes."
21 United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 176
22 (9th Cir. 1987). The court "must always consider whether the public
23 interest would be advanced or impaired by issuance of an injunction
24 in any action in which the public interest is affected." Caribbean
25 Marine Services Co., Inc. v. Baldridge, 844 F.2d 668, 677 (9th Cir.
26 1988). Discrimination against an individual on the basis of his or
27 her disability under title III of the ADA "is clearly contrary to
28 public policy and the interests of society as a whole." Anderson v.
                                       25
1  Little League Baseball, Inc., 794 F. Supp. 342, 345 (D. Ariz. 1992)
2  (granting temporary restraining order in favor of a coach who uses a
3  wheelchair in order to allow him to serve as an on-field base coach
4  during Little League softball tournament).
5       Public policy weighs heavily in favor of sending a strong
6  message to child care providers that they may not discriminate
7  against children with disabilities. While parents of non-disabled
8  children often have difficulty finding adequate, affordable child
9  care, this difficulty is significantly amplified for parents of
10 children with severe disabilities who are often forced to forego
11 full-time work in order to care for their children. See supra at n.
12 15. Children with disabilities who are denied opportunities to
13 attend mainstream child care programs are deprived of meaningful
14 opportunities to learn from their non-disabled peers during their
15 formative years. They may internalize a sense of isolation and
16 develop a self-image of being fundamentally "different" from other
17 children.
18      The only alternatives facing families like the Orrs is to
19 forego employment or to institutionalize their children, even when
20 they are doing well in public school. These alternatives are
21 incompatible with the public interest. As Senator Dodd stated
22 during the passage of the ADA, isolating children with disabilities
23 from mainstream health clinics, child care centers, playgrounds,
24 schools, restaurants, and stores:
25              . . . severely stigmatize[s] children with disabilities
        and their families. While it may be more cost efficient in
26      some cases to congregate services for children with
        disabilities in a centralized location, it has been determined
27      that such costs are outweighed by the benefits to children with
        disabilities and their families of being able to obtain
28      services in their neighborhoods with their friends and family
                                       26
1       around.
2  135 Cong. Rec. S10721, S10722 (daily ed. Sept. 7, 1989) (Statement
3  of Sen. Dodd, Chair, Senate Subcommittee on Children and Families);
4  see also congressional statement of purpose in the newly-enacted
5  Improving America's School Act, 20 U.S.C. S 1491a(c)(6) (Family
6  Support for Families of Children with Disabilities) (1994)
7  ("Families must be supported in their efforts to promote the
8  integration and inclusion of their children with disabilities into
9  all aspects of community life.").
10      The societal consequences of excluding children with
11 disabilities from mainstream child care are equally devastating.
12 Non-disabled children who are segregated from children with
13 disabilities have no opportunity to assimilate people with
14 disabilities into their concept of who constitutes American
15 society.17 Non-disabled individuals who have had positive childhood
16 experiences with persons with disabilities are less likely as adults
17 to discriminate against persons with disabilities in employment,
18 public programs, and public accommodations.
19      E.      THE OVERALL BALANCE FAVORS PLAINTIFFS.
20      Where the balance of the hardship decidedly favors the
21 plaintiff, a lesser showing of likelihood of success on the merits
22 is required; where the probability of success on the merits is high,
23 only the possibility of irreparable injury need be shown.
24 California v. American Stores Co., 872 F.2d 837, 840-41 (9th Cir.
25
26
        17      Non-disabled children in KinderCare's program have identified
27 themselves to William and Sherry Orr as Jeremy's friends. S. Orr.
   Decl. at P 7. This type of bonding is one of the values of
28 mainstream child care.
                                       27
1  1989), rev'd on other grounds, 495 U.S. 271 (1990); Caribbean Marine
2  Services Co., Inc. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988);
3  United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174
4  (9th Cir. 1987).
5       Here, there is a substantial likelihood that Plaintiffs will
6  succeed on the merits of their ADA claims and, almost certainly,
7  that Jeremy will suffer unduly if he is taken out of the KinderCare
8  environment with which he is familiar. Neither Jeremy nor his
9  parents can recover monetary damages for discrimination under title
10 III. Moreover, public policy weighs heavily in favor of sending
11 child care centers a strong message that they must provide children
12 with disabilities an opportunity to participate in their programs
13 that is equal to the opportunities provided to nondisabled children.
14 ///
15 ///
16 ///
17
18
19
20
21
22
23
24
25
26
27
28
                                       28
                                III. CONCLUSION
        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 25th, 1995                        April 24th, 1995
                        Respectfully submitted,
        CHARLES J. STEVENS,                     KERRY ALAN SCANLON,
        United States Attorney,                 Deputy Assistant Attorney
        Eastern Dist. of California             General for Civil Rights
By:                                          By:
        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
                                       29
1
                           **CERTIFICATE OF SERVICE**
2
        The undersigned hereby certifies that she is an employee in the
3  office of the United States Attorney for the Eastern District of
   California and is a person of such age and discretion as to be
4  competent to serve papers.
5       That on April 25, 1995, she served a copy of the attached:
6
     United States' Brief as Amicus Curiae in Support of Plaintiffs' Motion
7            for Preliminary Injunction and Request for Oral Argument
8
   by placing said copy in a postage paid envelope addressed to the
9  person(s) hereinafter listed, by depositing said envelope in the
   United States Mail at Sacramento, California.
10
11 By United States Mail:
12 Victor J. James II
   LITTLER, MENDELSON, FASTIFF
13 TICHY & MATHIASON
   400 Capitol Mall, 16th Floor
14 Sacramento, CA 95814-4410
15 Arlene Brynne Mayerson
   Disability Rights Education & Defense
16 2212 Sixth Street
   Berkeley, CA 94710
17
   Gil A. Abramson
18 HOGAN & HARTSON
   111 S. Calvert Street
19 Suite 1600
   Baltimore, MD 21202
20
   Jennifer Brown
21 ORRICK, HERRINGTON & SUTCLIFFE
   400 Capitol Mall
22 Suite 3000
   Sacramento, CA 95814
23
24
25
                                        Griselda Ballesteros
26                                         Legal Secretary
27
28
                                Department of Justice
FOR IMMEDIATE RELEASE                                                       CR
THURSDAY, AUGUST 22, 1996                                       (202) 616-2765
                                                            TDD (202) 514-1888
        JUSTICE DEPARTMENT AGREEMENT ENSURES ACCESS TO DAYCARE FOR MORE
                        THAN 100,00 CHILDREN WITH DIABETES
        WASHINGTON, D.C. -- The nation's largest corporate owned
child care chain will establish a model policy to help ensure
that children with diabetes have equal access to daycare, under
an agreement reached today with the Department of Justice.
        KinderCare, a daycare chain with more than 1100 facilities
around the country, will establish a new national policy to
comply with the Americans with Disabilities Act (ADA). Under
today's agreement, staff will monitor the blood sugar levels of
children with diabetes, by administering simple "finger prick
tests."
        "Children with diabetes shouldn't be left on the sidelines,"
said Attorney General Janet Reno. "Now we hope that other child
care facilities will do the right thing and follow KinderCare's
lead."
        Earlier this year the Disability Rights and Education
Defense Fund (DREDF) informed the Justice Department of a case
brought by the American Diabetes Association, its Ohio affiliate,
and the grandmother of Jesi Stuthard, a three-year-old boy with
                                     (MORE)
                                     - 2 -
diabetes, who sued KinderCare for violating the ADA. The suit,
filed in Columbus, Ohio, alleged that the boy was unable to
enroll at a KinderCare facility in Columbus due to the company's
policy of refusing to administer finger-prick tests. The child
needed the tests at least once a day to make sure his blood sugar
was at a safe and healthy level.
        The Justice Department brought DREDF, who represented the
three plaintiffs, and the company together to help negotiate an
agreement that would affect all KinderCare facilities nationwide.
        For children with diabetes, the finger-prick test is an
essential part of a daily routine for health. The simple test
requires pricking a finger to obtain a blood sample, placing that
sample on a test strip, feeding the test strip into a monitor,
and reading the level. If the blood sugar level is too low, the
child can drink apple juice to elevate the level into the normal
range. The test takes less than a minute and poses no health
risk to other children or caregivers.
        Before today's agreement, many parents of children with
diabetes would have to leave their work during the day and go to
a center to conduct the tests.
        "Today's suit not only helps children, but working families
as well," said Deval L. Patrick, Assistant Attorney General for
Civil Rights. "Parents can have full productive workdays knowing
that their children are healthy and safe."
        Under the agreement KinderCare will:
                                     (MORE)
                                      - 3 -
        *       admit Jesi Stuthard to its daycare program;
        *       conduct finger-prick tests for children with diabetes
                daily and when they exhibit signs of low blood sugar;
        *       no longer ask if a child has diabetes before that child
                is enrolled at a facility;
        *       provide training to staff about the ADA and its
                requirements;
        *       hire a Disability Services Coordinator (DSC) to answer
                questions and help resolve disability related issues
                for parents and staff; and,
        *       post a toll free number where the DSC can be reached.
        "This agreement serves the best interests of children, their
families, and those who are committed to providing for a child's
care and growth," said Edmund A. Sargus, Jr., U.S. Attorney in
Columbus. "The agreement grew from one family's determination to
make sure their child would have access to quality care, and is a
model for the entire country."
        Nationally, it is estimated that more than 100,000 children
under the age of 18 have diabetes. Diabetes is a non-contagious
disease in which the body does not produce or properly use
insulin, a hormone needed to convert sugar, starches and other
foods needed for daily life.
        Children receive their daily insulin shots at home usually
before breakfast and dinner. Under the agreement, KinderCare is
not obligated to administer insulin shots and will not be liable
for diabetes care as long as they take reasonable care when
following written orders from a child's physician and parents.
                                     (MORE)
                                     - 4 -
        Parents will be required to provide any special food items
or equipment and to sign an authorization form every six months
informing the center of the child's changing needs.
        Title III of the ADA prohibits discrimination on the basis
of disability by private businesses, including daycare
facilities.
        People who would like to find out more about the ADA or
would like to obtain copies of today's agreement can call the
Justice Department's toll-free ADA Information Line at (800) 514-
0301 or (800) 514-0383 TDD or access the ADA home page at
http://www.usdoj.gov/crt/ada/adahoml.htm.
                                     # # #
96-400
                     QUESTIONS ABOUT CHILDREN WITH DIABETES
Why is it important to follow the ADA and allow children with diabetes to
enroll 
in daycare programs?
*     It's important for children with diabetes. Preventive health care is 
      essential for the continued good health of children with diabetes. Kids 
      with diabetes can lead active, healthy lives, but not without proper 
      monitoring and care of their condition, and by doing finger-prick tests.
*     It's important for parents. Parents of children with diabetes often have 
      had a hard time finding child care where they will not have to choose 
      between the simple steps necessary for their child's health and a needed 
      job. Following the ADA gives parents a meaningful child care 
      opportunity.
*     It's important for teachers. If a child with diabetes starts to act up, 
      it may be because of a low blood glucose level rather then intentional 
      bad behavior. A child care provider can test and correct a low blood 
      glucose level, thus eliminating a discipline problem.
How many people are affected by today's settlement?
        There are about 100,000 children under the age of 18 with diabetes in  
        the United States. Those children, their parents, friends and family 
        are all positively affected when child care providers comply with the 
        ADA. Additionally, there are about 16 million Americans with diabetes.
Will it be difficult or expensive for a child care provider to comply with the 
law?
        No. Caring for children with diabetes is cost-free. It is the parent's 
        responsibility to provide the child care center with a blood glucose 
        monitor, paper strips and sterilized lancets. It takes only a few 
        minutes to do a finger-prick test. 
What are diabetes-related do's and don'ts for child care providers under the 
ADA?
*       Do give children with diabetes daily finger-prick tests as necessary;
*       Do pay attention to the doctor's and parent' dietary and health 
        instructions for the child;
*       Don't ask whether a child has diabetes before a child enrolls at a 
        facility;
*       Don't unlawfully prevent or otherwise discourage parents from seeking 
        to enroll their child with diabetes in child care.
DREDF   Disability Rights Education and Defense Fund, Inc.
Law, Public Policy, Training and Technical Assistance
FOR IMMEDIATE RELEASE August 21, 1996   Contact:        Arlene Mayerson
                                                        DREDF
                                                        (510) 644-2555
News Conference
Date:           Thursday, August 22, 1996
Time:           11:00 a.m.
Location:       DREDF office
                2212 Sixth Street
                 Berkeley, California
DREDF ATTORNEYS WIN MAJOR NATIONAL ADA VICTORY FOR
CHILDREN WITH DISABILITIES
CHILDCARE INTEGRATION SETTLEMENT HAILED BY ATTORNEY
GENERAL JANET RENO

        The Disability Rights Education and Defense Fund (DREDF) is holding a 
news conference Thursday, August 22 at 11 AM to announce a major victory for 
pre-school children and their families under the Americans with Disabilities
Act of 1990 (ADA). DREDF filed the case of Stuthard v. KinderCare, joined by
Vorys, Sater, Seymour and Pease of Columbus, Ohio and the U.S. Department of
Justice on behalf of Jesi Stuthard, a 4-year-old from Columbus, Ohio, was has
Juvenile Diabetes, to challenge the refusal of KinderCare Learning Centers to
provide Jesi with blood glucose monitoring.  Blood glucose monitoring is
accomplished through an easily administered finger prick test. There are
127,000 children in the U.S. have Juvenile Diabetes and perform the test
daily. Joining DREDF will be Kelsey Farbaree, a 7 year old girl with diabetes
from Walnut Creek, California, who will demonstrate the finger-prick test at
the news conference so the general public can understand its simplicity.
        Jesi's guardian, Patricia Dollison, the American Diabetes Association 
and its Ohio affiliate, sued KinderCare Learning Centers, Inc., one of the 
largest private childcare providers in the United States,
                                                                        P. 2
under the ADA over KinderCare's policy to refuse to administer the finger
prick test, which is essential to any child with diabetes to attend childcare.
Jesi's guardian, committed to his right to attend community-based child care,
filed the lawsuit after all other efforts failed. 
        "This is a tremendous victory for Jesi and for other children
throughout this country," said Arlene Mayerson, DREDF's Directing Attorney and
one of the primary authors of the ADA. "Children with disabilities deserve
equal access to childcare services and today's settlement reaffirms that right
and sends a message to the childcare industry that children with disabilities,
including children who require administration of simple health procedures,
must be given an opportunity to participate."
        "DREDF is committed to demystifying routine health support procedures 
that have long been an excuse for the exclusion of children with disabilities 
in our society. This settlement, which the U.S. Department of Justice also 
joined, affirms that, under the ADA, children with disabilities cannot be 
isolated as in the past," added Mayerson.
        The settlement states that:
*     KinderCare staff will administer the finger-prick test to monitor blood 
      glucose levels in accordance with the physician's instructions.
*     KinderCare will not refuse admission to a child with diabetes because 
      of the need for a finger-stick test.
*     KinderCare will train staff on the rights of children with disabilities 
      under the ADA.
*     KinderCare will establish a disability coordinator to assure compliance 
      with disability rights laws.  
     
       "The ADA was intended to open the door to child care programs to 
children with disabilities.  This is a major step in bringing all families and 
children into the mainstream of American community life," said Mayerson.
        News conferences will also be held August 22 in Columbus, Ohio and at 
the U.S. Department of Justice in Washington D.C. where Attorney General Janet 
Reno will speak about this historic settlement.  
American
Diabetes
Association                     News Release
National Service Center 1660 Duke Street Alexandria, Virginia 22314 
                                (703) 549-1500 Telex: 901132 Fax: (703)
549-6294
For Release   Immediate         Contact:        Elizabeth Miller, 703/299-2056
                                                Ken Inchausti, 703/299-5506
      NATION'S LARGEST DAY-CARE PROVIDER TO REVISE POLICY THAT DISCRIMINATED
                          AGAINST CHILDREN WITH DIABETES
              American Diabetes Association Reaches Settlement With
                  KinderCare, Inc. About Disability Act Charges
ALEXANDRIA, VA (August 22, 1996) -- In a groundbreaking agreement, the
American Diabetes Association, acting with the Disability Rights Education and
Defense Fund (DREDF) and the U.S. Department of Justice, today announced it
has reached a legal settlement with KinderCare. Inc., for claims of violating
Title III of the Americans with Disabilities Act in discriminating against
children with diabetes.
        The agreement was also announced today by U.S. Attorney General Janet 
Reno at a press conference in Washington, DC.
        In a lawsuit brought by the Association, its Ohio Affiliate and then 
2-year-old Grove City, Ohio resident, Jesi Stuthard, KinderCare was charged 
with excluding children with diabetes, refusing to provide assistance in blood 
glucose monitoring and other essential activities related to the management of 
this serious and potentially fatal disease. As part of the settlement, the 
Alabama-based KinderCare must now revise its discriminatory practices and 
improve its national policy regarding children with diabetes. Among other 
changes, KinderCare will monitor blood sugar levels (including the 
administration of the finger-prick test upon parent request), diet and
exercise and alert parents when glucose levels fall outside the appropriate
agreed-upon range.
        "Parents of children with diabetes should demand nothing less than
this standard of support now required of KinderCare," said Alan Altschuler,
chair of the board of the American Diabetes Association. "This case provides a
sound foundation for parents of children with diabetes to register formal
complaints when day-care enrollment is prohibited due to diabetes-based
discrimination."
                                     -more-
                                       -2-
        Sixteen million Americans, including 127,000 children under age 20, 
have diabetes, a serious disease that affects the body's ability to produce or 
respond properly to insulin, a hormone that allows blood sugar to enter the
body and be used for energy. People with diabetes face a daily balancing act
that requires them to avidly monitor their blood sugar levels, food intake and 
exercise in order to stay healthy. Without proper management, people with 
diabetes are vulnerable to long-term complications, including kidney failure, 
heart disease, stroke, blindness and amputations.
        "We pledge to work with federal and state civil rights agencies to 
ensure that no child with diabetes is discriminated against in a day-care 
setting," said Michael A. Greene, chair of the Association's legal advocacy
committee and former chair of the board. "The KinderCare settlement is the 
standard we have long sought to protect children with diabetes in day-care and 
educational environments. This victory adds meaningful momentum to the 
Association's efforts to combat discrimination against people with diabetes at 
any age and in any circumstance."
        DREDF and the Ohio-based law firm of Vorys, Sater, Seymour and Pease 
have represented the American Diabetes Association in the KinderCare case.
DREDF is a national law and policy center with offices in Berkeley,
California, and Washington, DC.
        The American Diabetes Association is the nation's leading voluntary 
health organization supporting diabetes research, information and advocacy. 
Founded in 1940, the Association supports an affiliate office in every region
of the country, providing services to more than 800 communities.
        For more information on the Association's advocacy program, Delegates 
for Diabetes, call 1-800-DIABETES (1-800-342-2383) or visit us on the World 
Wide Web at http://www.diabetes.org.
                                      ###
                                   FACT SHEET
                        AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act (ADA) is a comprehensive civil rights law 
that protects the rights of people with disabilities. It eliminates barriers 
that prevent people from fully participating in society, as well as ensuring 
access to vital government activities and to private sector goods and services 
that are necessary for daily living and employment.  
Title II protects qualified individuals with disabilities from 
discrimination on the basis of disability in the services, programs, or 
activities of all state and local governments.
Title III of the law applies to private entities and covers their 
responsibilities to customers and other non-employees. Title III has many 
provisions, all designed to protect the access of people with disabilities to 
the goods and services provided by private entities.
The Justice Department has reached agreements in nearly 500 cases since the
law was passed in 1990. Some recent enforcement highlights include:
                        GAINING ACCESS TO EMERGENCY SERVICE
        Under the ADA, the basic services that we expect from government must 
be provided on a nondiscriminatory basis to people with disabilities.
*     Both the State of California and the City of Chicago had separate 
      agreements to ensure that 9-1-1 centers were able to service people 
      with disabilities.
 BECOMING PART OF THE ECONOMIC MAINSTREAM AND ENSURING FAIR TREATMENT
      A primary goal of the ADA is to bring people with disabilities into the 
      mainstream of the American economy and protect them from unfair 
      treatment.
*     Safeway Stores agreed to review more than 800 stores nationwide to 
      ensure they are accessible to people with disabilities.
*     Lone Star Steakhouse and Saloons agreed to bring 97 facilities into full
      compliance with the ADA, and to make sure that all restaurants built in 
      the future conform with the ADA's Standards for Accessible Design.
*     Bekins Van Lines agreed to establish an ADA policy after refusing to 
      transport the belongings of two persons because the moving crew saw an 
      individual with AIDS, a neighbor, at  the home.  AIDS is considered a 
      disability under the ADA.
          ACCESS TO BUSINESS/LEISURE TRAVEL AND RECREATIONAL ACTIVITIES
        The ADA guarantees the right of people with disabilities to enjoy the 
amenities of leisure and business travel, in addition to enjoying recreational 
activities with family and friends.
*     Days Inn Hotel chain was sued by the Department for allegedly building 
      new hotels that were not accessible.
*     The Atlanta Committee on the Olympic Games and the Metropolitan Atlanta 
      Olympic Games Authority entered agreements making the Olympic Stadium 
      the most accessible sporting arena in the world.
*     United Artists' 400 theaters will provide accessible spaces for people 
      who use wheelchairs in a way to ensure that moviegoers with disabilities 
      can sit with their friends and families.
                                                For more information, contact:
                                                Kelly O'Malley, 314-982-8635
FOR IMMEDIATE RELEASE
        KINDERCARE LEARNING CENTERS LEADS INDUSTRY IN CARE FOR
                CHILDREN WITH INSULIN-DEPENDENT DIABETES
        Montgomery, Ala. Aug. 22, 1996 -- KinderCare Learning Centers, Inc.
announced today that it has reached an agreement with the Department of
Justice as a result of an inquiry into the practices utilized by the child
care industry to enroll and care for children with insulin-dependent diabetes.
KinderCare, the nation's largest preschool and child care company, is
recognized in the industry as the leading provider of quality child care to
all children, including those with disabilities.
        "This agreement further demonstrates KinderCare's long-standing, 
voluntary commitment to caring for children with disabilities," said Sandra 
Scarr, Ph.D., chief executive officer and chairman of the board, KinderCare 
Learning Centers. "KinderCare cares for thousands of children with
disabilities every day and is proud to lead the industry in practices that
benefit those children with insulin-dependent diabetes."
        The agreement resolves an issue in Ohio involving a child with
insulin-dependent diabetes, who will be enrolled in the KinderCare center in
Grove City, Ohio. The issue underlying the Ohio case is the administration and
monitoring of blood glucose valuations for children with diabetes.
                                        -more-
page two
        "KinderCare's agreement to provide these services throughout the
country underscores KinderCare's leadership by example and sets the standard
for other child care providers to follow in providing services to children
with disabilities," said Scarr.
        As a result of the agreement, KinderCare will develop and implement an
industry-leading training program to ensure the best care for children with 
special needs. KinderCare's policies regarding children with disabilities has 
been refined with the assistance of the Department of Justice as a result of 
this agreement. KinderCare will also voluntarily designate a Disability
Services Coordinator to coordinate all enrollment issues regarding children
with disabilities.
        KinderCare is the largest preschool and child care company in the
United States. Under the banners of KinderCare Learning Centers, Inc.,
KinderCare at Work and Kid's Choice, the company operates more than 1,100
child care centers in 38 states and the United Kingdom with an enrollment of
approximately 120,000 full-time and part-time children and employ more than
23,000 people. Children's education programs include: toddler programs Look at
Me and Let Me Do I; preschool programs My Window on the World and Once Upon a
Time ...: and the schoolage program KC Imagination Highway. KinderCare was
founded in 1969 and is headquartered in Montgomery, Ala.
                                        ###
        For further information please contact
Gil A. Abramson, Hogan & Hartson, L.L.P., 111 South
Calvert Street, 16th Floor,
Baltimore, MD 21202
                                  KINDERCARE LOCATIONS
As of July 1996, there were approximately 1143 KinderCare centers
around the country, located as follows:
                   Community       KinderCare at        Kids Choice Location
                   Centers         Work Centers         Centers
Alabama                 13              -                       1
Arizona                 16              2                       -
Arkansas                 4              -                       -
California              93              1                       2
Colorado                23              -                       1
Connecticut             13              2                       -
Delaware                 5              -                       -
Florida                 66              6                       2
Georgia                 37              -                       2
Illinois                72              3                       8
Indiana                 25              2                       1
Iowa                     7              2                       1
Kansas                  18              -                       -
Kentucky                13              1                       1
Louisiana               13              2                       -
Maryland                21              -                       1
Massachusetts           17              -                       -
Michigan                32              2                       1
Minnesota               31              -                       1
Mississippi              4              -                       -
Missouri                48              -                       -
Nebraska                10              1                       -
Nevada                  10              -                       -
New Jersey              27              4                       -
New Mexico               7              -                       -
New York                 2              1                       -
North Carolina          34              -                       2
Ohio                    56              3                       6
Oklahoma                10              -                       -
Oregon                  13              3                       -
Pennsylvania            41              -                       -
Rhode Island             -              1                       -
Tennessee               27              2                       2
Texas                  124              1                       8
Utah                     6              -                       -
Virginia                51              -                       2
Washington              47              -                       2
Wisconsin               23              1                       -
Total                1,059             40                      44
                                KINDERCARE CONTACT SHEET
U.S. DEPARTMENT OF JUSTICE
                Public Affairs Office
                (202) 616-2765
AMERICAN DIABETES ASSOCIATION
                Elizabeth Miller
                (703) 299-2056
DISABILITY RIGHTS AND EDUCATION FUND (DREDF)
                ARLENE B. MAYERSON
                (510) 644-2555
KINDERCARE:
                GIL ABRAMSON
                Hogan & Hartson
                (410) 659-2700
U.S. ATTORNEY'S OFFICE, COLUMBUS, OHIO:
                Fred Alverson
                Public Affairs Specialist
                Southern District of Ohio
                2 Nationwide Plaza,
                280 N. High Street, 4th Floor
                Columbus, Ohio 43215
                (614) 469-2057, ext. 327
ATTORNEY REPRESENTING THE FAMILY OF JESI STUTHARD:
                JOHN KULEWICZ,
                Vorys, Sater, Seymour and Pease
                (614) 464-6400