UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

John McDonald,

Plaintiff,

v.

J.B. Pritzker, in his official capacity as 

Governor of Illinois, and Grace B. Hou, 

in her official capacity as Secretary of 

the Illinois Department of Human 

Services,

Defendants.

Case No. 1:20-cv-03653

Chief Judge Pallmeyer

PLAINTIFF’S REPLY IN SUPPORT OF EMERGENCY MOTION FOR A 

TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION 

INTRODUCTION 

Defendants’ opposition brief misstates the nature of their discriminatory 

policy. Defendants, of course, shuttered Community Day Services (“CDS”) programs 

in March, just as they shuttered comparable programs for persons without 

disabilities. But when Defendants began to reopen programs for everyone else, the 

Rehabilitation Act, the Americans with Disabilities Act (“ADA”), and the Equal 

Protection Clause required Defendants to reopen programs for disabled persons on 

the same basis, and under the same timetable, with additional special limitations 

and delays tailored only for individual disabled persons and their individual 

conditions, not to the disabled as an undifferentiated group. That non-discriminatory 

approach would have involved Defendants issuing guidelines to CDS programs for 

their reopening in May to permit CDS reopening at the start of phase 3 on June 3.

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Defendants violated that federal statutory and constitutional obligation, announcing

that they would not give CDS services for any disabled person equal treatment until 

September, nearly three months later. What Defendants now propose—to possibly 

permit some CDS programs to reopen on August 1—does not remedy that plainly 

unlawful discrimination. Notably, not a single word in Defendants’ brief or 

declarations even attempts to explain why they did not take steps to facilitate 

reopening many weeks ago, to permit a non-discriminatory reopening in early June.

One need only consider how the courts would react if Defendants had similarly 

slow-walked reopening for just minorities or a particular gender, because of claimed 

special vulnerability of COVID-19, a point that this Court specifically raised at last 

week’s hearing and which Defendants ignore entirely in their 42-page brief.

This Court should not permit Defendants to continue their discriminatory 

regime through bureaucratic delay. Plaintiff should be permitted to return to his job 

on Wednesday, as discussed at the June 25 hearing. Community Workshop and

Training Center (“CWTC”) addressed a letter to Plaintiff’s sister this weekend, 

explaining that CWTC can gladly accommodate his safe, gradual return this 

Wednesday, with his long-time supervisor there, thereby addressing this Court’s 

concern. Second Declaration of Sean T.H. Dutton (“Second Dutton Decl.”) Ex. 1. As 

for relief beyond CWTC, Defendants falsely claim that Plaintiff asked this Court for 

immediate reopening of all CDS programs. In stark contrast, what Plaintiff has 

actually asked this Court to do is to invalidate Defendants’ blanket CDS closure 

policy, and, as a remedy, to require that Defendants permit reopening on the same 

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basis that they have permitted reopening of services for people without disabilities.

That means that Defendants cannot impose blanket conditions on the reopening of 

CDS programs that they have not imposed on the reopening of services for persons

without disabilities, and can deny services only upon an individualized inquiry, for a 

particular disabled person’s limitations or situation.

ARGUMENT 

I. Plaintiff Has Prevailed Under All Of The Preliminary Injunction Factors 

Plaintiff is likely to succeed on the merits and has satisfied the equitable 

aspects of the injunction inquiry. As to the ADA and Rehabilitation Act, Plaintiff is 

likely to succeed on three independent bases: (1) Defendants intentionally 

discriminated because they based their blanket closure policy on unfounded 

stereotypes and paternalistic concerns about disabled individuals, such as their 

claimed inability to wash their hands; Dkt. 7 at 8–10; see School Bd. of Nassau Cty. 

v. Arline, 480 U.S. 273, 278-88 (1987); Washington v. Ind. High Sch. Athletic Ass’n, 

Inc., 181 F.3d 840, 851 (7th Cir. 1999); (2) Defendants denied Plaintiff any reasonable 

accommodations that would have enabled him to continue participating in CWTC;

see Dkt. 7 at 10–11; and (3) Defendants’ shuttering of CDS programs imposes a 

disparate impact on the disabled, like Plaintiff, as compared to the able-bodied. 

Dkt. 7 at 11–12. Plaintiff’s Equal Protection claim is similarly strong, for much the 

same reasons. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 

446 (1985); Dkt. 7 at 12–13. Plaintiff satisfied the other preliminary injunction 

factors because he is experiencing irreparable injury, given his grave physiological 

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and emotional harm from Defendants’ actions, as well as loss of federal statutory and 

constitutional rights. Dkt. 8 ¶¶ 6–9, 12–13 (“broken down in tears”); Dkt. 7 at 14–15. 

Defendants’ arguments to the contrary all fail.

First, Defendants’ extensive reliance on Jacobson v. Massachusetts, 197 U.S. 

11 (1905), Dkt. 16 at 22–26, is misplaced for two independently sufficient reasons. 

As a threshold matter, Jacobson is a case about the proper interpretation of 

the open-ended guarantees in the Constitution, such as the Due Process Clause, 

where courts must make substantial common law. See Elim Romanian Pentecostal 

Church v. Pritzker, ___ F.3d ___, 2020 WL 3249062 (7th Cir. June 16, 2020)

(discussing Jacobson in context of constitutional rights only); In re Rutledge, 956 F.3d 

1018 (8th Cir. 2020) (same); In re Abbott, 954 F.3d 772 (5th Cir. 2020) (same). In 

cases of anti-discrimination statutes, like the Rehabilitation Act and the ADA, the 

Court’s duty is simply to follow the statutory text, as the Supreme Court explained 

in its recent ruling in Bostock v. Clayton County, ___ S. Ct.___, 2020 WL 3146686 

(2020): a court “interprets a statute in accord with the ordinary public meaning of its 

terms,” because “only the words on the page constitute the law.” Id. at *4. Just as 

States cannot discriminate based upon sex under Title VII, id., they cannot 

discriminate against disabled individuals under the Rehabilitation Act and the ADA. 

In any event, Jacobson does not authorize governments to use emergencies as 

an excuse for discrimination. Had Defendants dared launch their Jacobson argument 

in support of excluding minorities or a specific gender from their reopening plan, 

based on group-based COVID-19 concerns, the courts’ rebuke would surely have been

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swift and harsh. That is because Jacobson merely holds that laws that are equally 

applicable deserve more deference in times of crises, 197 U.S. at 26–29, which is 

obviously not what is occurring here. Only Korematsu v. United States, 323 U.S. 214 

(1944), held that the government has special license to discriminate in times of crises, 

and the Supreme Court has rightly repudiated that decision, see Trump v. Hawaii, 

138 S. Ct. 2392, 2423 (2018). Defendants did not cite any legal support applying 

Jacobson to claims based on anti-discrimination statutes or the Equal Protection 

Clause’s prohibition against discrimination. See generally Dkt. 16 at 22–25.

Second, Defendants make the risible argument that their own temporary 

suspension of CDS programs negates Plaintiff’s statutory claims. Dkt. 16 at 27–28. 

The CDS program obviously exists: Defendants just “temporarily suspend[ed]” it. 

Dkt. 16 at 9. Plaintiff’s nondiscrimination claims are that Defendants must reopen 

this program consistent with their reopening of comparable programs for the ablebodied, not that Defendants must create a “non-existent government program.” 

Dkt. 16 at 27. Under Defendants’ unprecedented logic, they could shutter any

program for disabled individuals and evade any liability under the Rehabilitation Act 

and the ADA, no matter how egregious their discriminatory reason for their closure 

or refusal to reopen, without recourse under the Rehabilitation Act or the ADA. 

Third, Defendants claim that they have not engaged in “intentional” 

discrimination “[b]ecause the entire program exists to provide services for the 

developmentally disabled community of Illinois,” meaning that consideration of 

“participants’ disabilities” when ordering the CDS program closed was inevitable. 

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Dkt. 16 at 28–30. This misunderstands the purpose of the Rehabilitation Act and the 

ADA: the prohibition of government policymaking based on “unfounded . . . 

stereotyp[ing]” of, or “paternalistic concern[ ]” for, disabled individuals as a group. 

Dkt. 7 at 8 (citations omitted). As this Court noted on June 25, an “individualized 

determination” is “precisely the point” under the ADA. Transcript of Hearing, June 

25, 2020 (“Tr.”), at 21. Defendants cannot keep the CDS program closed for all 

disabled individuals based on the concern that some of those individuals may have 

difficulties complying with certain safety guidelines or may have other issues. Dkt. 7 

at 9–10. Notably, Defendants no longer defend even their offensive hand-washing 

rationale, but rather claim that “the developmental disabilities of every client are 

considered in virtually every decision related to the CDS program.” Dkt. 16 at 30. 

Their use of “virtually” gives the game away. Such individualized consideration did 

not happen at all when Defendants opted not to reopen CDS programs. Instead, 

Defendants relied entirely upon offensive stereotypes of individuals with disabilities, 

which, again, they do not even attempt to defend now. This is why the CDS program 

remains closed to anyone with a disability, including Plaintiff, regardless of their 

abilities to comply with relevant safety protocols. See Dkt. 7 at 11. 

And Defendants’ new rationale—that those with disabilities may live in “group 

homes” and so suffer from heightened susceptibility to COVID-19—fares no better. 

Dkt. 16 at 11–12, 21–22. That too is an unjustifiable generalization, not a considered, 

individualized assessment, which does not satisfy Defendants’ federal obligations. 

Plaintiff, like many other disabled people, does not reside in a group-home setting. 

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See Dkt. 8 ¶¶ 2, 16; Dkt. 8-1. Notably, while Defendants try to hide behind 

Minnesota’s approach to CDS, that State has ended its blanket ban on disabled 

citizens’ participation in CDS programs and, instead, allows the participation of all 

disabled individuals who do not live in group-home settings, like Plaintiff. See

Dkt. 16 at 9–10, 25. Similarly, Connecticut has currently enacted plans for reopening 

CDS programs “as soon as the provider is able to provide the service needed,” 

consistent with its reopening plans for non-disabled citizens. Dkt. 16 at 10 & n.14. 

Fourth, Defendants claim that ordering them to end their blanket CDS closure 

policy would “fundamentally alter” this program, meaning that this is not a 

reasonable accommodation under the ADA. Dkt. 16 at 30–33. But neither “logic” nor 

the case law “dictates” that allowing individuals into a government program for the 

very purpose that the program was designed is unreasonable. Dkt. 16 at 31; compare 

Valencia v. City of Springfield, 883 F.3d 959, 968 (7th Cir. 2018). Rather, Defendants 

admit that Plaintiff qualifies for the CDS program and they are willing to reopen it 

in the coming months, thus ordering them to reopen now would not be a “substantial 

modification[ ].” A.H. by Holzmueller v. Illinois High Sch. Ass’n, 881 F.3d 587, 595 

(7th Cir. 2018). As for Defendants’ concerns with various “administrative burdens,” 

Dkt. 16 at 31–32, those can all be worked out in due course—after Plaintiff returns 

to work—and are solely the result of Defendants’ own discriminatory delay. Indeed, 

Defendants cannot provide any rational explanation for why they have not prepared 

safety guidelines for reopening CDS programs in conjunction with those for ablebodied persons and businesses, such as bars, day care centers, and children’s camps.

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Defendants offer of “alternative programming” for Plaintiff to complete at 

home, instead of allowing Plaintiff to return to work at CWTC, does not amount to a 

reasonable accommodation. Dkt. 16 at 33. This “alternative programming”—largely 

one-on-one activities in Plaintiff’s own home, id.—is not a genuine substitute for 

Plaintiff’s employment at CWTC, which provides his life with critically important 

structure, a sense of purpose, and the ability to earn an income. See Dkt. 7 at 3. 

Fifth, Defendants take the position that Plaintiff cannot advance a disparateimpact argument because Defendants have withheld access to CDS programs from 

all disabled people. Dkt. 16 at 34. That is, of course, wrong. The basis of Plaintiff’s 

disparate impact claim is that all individuals with disabilities were treated worse 

than similarly situated non-disabled individuals—such as those individuals in 

manufacturing, non-overnight day camps, and pre-kindergarten—and that “but for” 

their disabilities, these individuals too would have been able to return to their similar 

places. Dkt. 7 at 11–12. This is a textbook disparate-impact showing.

Sixth, as to Plaintiff’s Equal Protection claim, Defendants argue that Plaintiff 

failed to carry his burden of “negat[ing] every conceivable basis for the [Defendants’] 

decision” under Cleburne. Dkt. 16 at 36. This ignores the fact that Defendants, in 

their own words, already admitted that their decision was based on their 

discriminatory belief that disabled individuals lacked the ability to abide by basic 

hygiene protocols. Dkt. 9-13. That admission is sufficient to prove that Defendants 

“rel[ied] on a classification whose relationship to an asserted goal is so attenuated as 

to render the distinction arbitrary or irrational.” Cleburne, 473 U.S. at 446.

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Finally, on the equities, Defendants claim that Plaintiff is not sufficiently 

harmed because his caretakers or guardians could simply pay for this state program 

themselves, but this completely undermines the entire purpose of the Rehabilitation 

Act: States like Illinois that accept federal funds must treat disabled individuals 

equally. Dkt. 16 at 38–39; see Dkt. 7 at 6 n.1. It also overlooks the fact that CWTC

shuttered all services to disabled people under the State’s blanket reopening ban. See

Dkt. 8 ¶ 10–11. Dkt. 9-10. In any event, “[t]he existence of a continuing 

constitutional violation constitutes proof of an irreparable harm,” Preston v. 

Thompson, 589 F.2d 300, 303 n. 3 (7th Cir. 1978), as does severe emotional harm, 

which Defendants do not dispute, Whitaker by Whitaker v. Kenosha Unified Sch. 

Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1045–46 (7th Cir. 2017); Dkt. 7 at 13–14. As 

for the public interest, Defendants claim that it tips in their favor because COVID-19 

is a serious illness. Dkt. 16 at 39–41. Yet, the State is well on its way to reopening, 

allowing bars, restaurants, day camps, gyms, and pre-kindergarten programs to 

begin normalized operations again. Excluding those with disabilities—and only those 

with disabilities—from this return to some normalcy cannot and does not serve the 

public interest. Dkt. 7 at 14–15. 

II. Plaintiff Can Safely Return To Work On Wednesday, Consistent With The 

Proceedings Before This Court Last Week 

The undisputed evidence is that both Plaintiff and CWTC are well-prepared 

for his immediate, safe return to work, as part of CWTC’s gradual reopening plan for 

disabled individuals. Defendants conceded as much at last week’s hearing when they 

noted that they had no concerns with Plaintiff returning to CWTC, so long as a 

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private party, not the government, foots the bill. Tr. at 6, 8–10. After this hearing, 

the Executive Director of CWTC wrote to Plaintiff’s sister and explained that CWTC 

is ready to bring him back to work, “taking into consideration the health and safety 

of our consumers and staff” and after having “implement[ed] increased hygiene, 

cleaning and safety practices to minimize risk to all individuals.” Second Dutton 

Decl. Ex. 1. Plaintiff’s longtime case manager continues to work at CWTC and is 

personally prepared to help Plaintiff safely return. Id. Plaintiff can begin working 

only on Mondays and Wednesdays, from 8:00 a.m. to 12:15 p.m., so that CWTC can 

abide by social-distancing and capacity limits. Id. Thus, CWTC is ready to provide 

Plaintiff with the services and sense of purpose he so desperately requires, so long as 

this Court provides the relief that Plaintiff is entitled to under the law. Dkt. 8 ¶¶ 8–

9; Second Dutton Decl. Ex.1.

Now attempting to walk back their concession from last week, Defendants 

claim that they object to Plaintiff returning to work because CWTC has not 

sufficiently established safe means to allow him to do so. Dkt. 16-1 at ¶ 29. CWTC’s 

gradual reopening plan is consistent with the Illinois Department of Public Health’s 

COVID-19 guidance for workplaces and daycares, and the Governor’s guidance for 

pre-kindergarten summer classes, which require monitoring participants for 

illnesses, excluding sick individuals from group programs, reinforcing hygiene and 

safety practices, providing options for frequent handwashing and use of hand 

sanitizer, and the like. Compare Second Dutton Decl. Exs. 2 & 3, with Dkt. 9-15 and

Dkt. 9-5. 

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In a particularly Kafkaesque passage, Defendants fault CWTC for 

noncompliance with a forthcoming, undisclosed set of reopening parameters. Dkt. 

16-1 at ¶¶ 29–30. CWTC should be commended for taking affirmative steps to ready 

itself to provide services to its disabled participants, while Defendants engaged in 

discriminatory delay that led to this litigation. Contrary to Defendants’ suggestion 

that Plaintiff’s benefits will necessarily be delayed while on-boarding paperwork is 

completed, Dkt. 16-1 ¶ 31, CWTC and Plaintiff have together completed staterequired documentation in the past, including his Individual Service Plan, even 

before he received guaranteed state funding for CDS program services. Dkt. 8-1. 

While Defendants “assume[ ]” that Plaintiff has been a private-pay participant 

in CWTC’s program for years, Dkt. 16 at 11, this is both unsupported by any record 

evidence and legally irrelevant. Defendants admit that Plaintiff is “approved” for 

state aid now, Dkt. 16 at 11, and do not dispute that CWTC shuttered all services to 

disabled people under the State’s blanket closure policy, see Dkt. 8 ¶ 10–11. Dkt. 9-

10. Although Plaintiff was cut from state benefits and forced to rely on the charity of 

others at one point in the past—a decision that Plaintiff got overturned under State 

law, Dkt. 16 at 11—this is no excuse to deny the benefits Defendants admit that he 

is entitled to now. Notably, it is undisputed that Plaintiff will return to CWTC on 

Wednesday only if this Court enters the order this Court discussed last week. See

Second Dutton Decl. Ex. 1; Dkt. 8 ¶ 10–11. Dkt. 9-10.

Finally, Defendants’ claim that Plaintiff may return to work immediately—but 

only under a “private-pay” agreement—defeats their public-safety argument. Dkt. 16 

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at 17–18. Defendants’ purported safety concerns surrounding disabled individuals 

returning to work at CWTC appear only to exist if the State has to expend funds. 

Defendants claim that there is a “vast difference” between private-pay and state-pay 

arrangements because “Plaintiff and his caregivers w[ould] mak[e] a decision to allow 

him back to work under private pay.” Dkt. 16 at 39 n.22. Yet, a disabled person 

would make that decision for himself under either arrangement, thus, as this Court 

previously noted, Defendants have failed to explain how their allowance for work 

under private pay does not refute their purported safety concerns. See Tr. at 9–10.

III. Plaintiff Has Standing To Seek Relief To Block Defendants’ Discriminatory 

Policy Statewide And This Court Should Invalidate That Policy 

Contrary to Defendants’ legally foreclosed arguments, see Dkt. 16 at 18–19, 

Plaintiff has standing to seek equitable relief that would prevent Defendants from 

enforcing their discriminatory policy of shuttering CDS programs until September

against all disabled citizens in Illinois, rather than requiring each such individual to 

obtain a lawyer to bring a lawsuit just like this one. The Seventh Circuit has recently 

held, consistent with decades of caselaw, that “both historical and current practice 

lends support to a determination that the courts possess the authority to impose 

injunctions that extend beyond the parties before the court,” which includes 

“extend[ing] injunctive relief to non-parties.” City of Chicago v. Barr, ___ F.3d ___, 

2020 WL 3037242, at *25, 27 (7th Cir. June 4, 2020). This is both necessary and 

important because, without this tool, “courts will have little ability to check the abuse 

of power that presents the most serious threat to the rule of law—such as that which 

is swift in implementation, widespread in impact, and targeted toward those with the 

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least ability to seek redress.” Id. at *26. Defendants inexplicably failed to mention 

that this recent, binding precedent foreclosed their standing argument.

Defendants’ argument that vague federalism concerns require this Court to 

withhold relief to the disabled who have not found their own lawyer, Dkt. 16 at 19–

22, also fails. Defendants principally rely on Money v. Pritzker, ___ F. Supp. 3d ___, 

2020 WL 1820660, at *15–16 (N.D. Ill. Apr. 10, 2020), which discusses federalism 

only in the context of prisons. The Supreme Court has concluded that “[i]t is difficult 

to imagine an activity in which a State has a stronger interest, or one that is more 

intricately bound up with state laws, regulations, and procedures, than the 

administration of its prisons.” Preiser v. Rodriguez, 411 U.S. 475, 491–92 (1973). 

That prisons provide special contexts does not undermine the federal courts’ duty to 

ensure that States administer programs fairly and accessibly for individuals with 

disabilities under the Rehabilitation Act, the ADA, and the Equal Protection Clause.

In this case, Plaintiff has presented uncontroverted evidence that Defendants’

decision to shutter CDS programs, even as programs for able-bodied people reopened,

is based on general class-based discrimination about the capabilities and attributes 

of disabled persons, rather than individualized determinations about each disabled 

person’s actual abilities and risks. Dkt. 9-13. Allowing this discrimination to stand 

as to the thousands of other similarly situated disabled persons in Illinois who cannot 

find their own lawyer asks this Court to turn a blind eye to the widespread effects of

Defendants’ illegality. See City of Chicago, 2020 WL 3037242, at *25 (noting the 

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necessity of broad injunctive power “to protect similarly-situated nonparties, and to 

avoid the chaos and confusion that comes from a patchwork of injunctions”). 

Defendants mention draft documents such as a “Provider Readiness Tool” and 

an “Individual Benefit/Risk Tool,” Dkt. 16-1 at ¶¶ 22–25; Dkt. 16-2 at ¶¶ 4, 6; see also

Dkt. 16 at 13–14, but refuse even to provide this Court with any of these “tools” to 

evaluate their merits. This is impermissible stalling, contrary to this Court’s prior 

statement that they “need to put a program in place” to allow disabled persons to 

return to work. Tr. 24. Defendants’ contention that some CDS programs might be 

able to open by August 1, Dkt. 16 at 14, is, of course, entirely insufficient and ignores 

the instructions this Court provided on June 25, Tr. 24. 

Finally, to the extent that Defendants are concerned that Plaintiff seeks an 

order mandating the immediate opening of all CDS programs statewide, Dkt. 16 at

20–21, they need not worry. Plaintiff only seeks to remove Defendants’ 

discriminatory blanket barriers keeping all CDS programs closed, and to permit those 

programs to reopen on the same footing as services for persons without disabilities. 

See supra, pp. 2–3. CWTC’s measured plan is consistent with all of the public-health 

requirements for similar programs and businesses, see supra pp. 9–10, and 

Defendants offer no reason that other CDS programs that meet these guidelines 

should remain closed. If certain disabled persons—unlike Plaintiff—have an 

increased risk of harm because of particular medical characteristics or living 

situations, the State need not allow all such persons to participate on the same terms 

or mandate that all CDS programs open without consideration of present ability to 

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safely do so, as even Defendants admit. Dkt. 16 at 21 (“Of course, an order compelling 

[Defendants] to restart the CDS program immediately is not coterminous with an 

order mandating that all CDS participants immediately return to participating in the 

program.”). As this Court explained last week, the touchstone under federal law, 

including the ADA, is individualized considerations for disabled individuals, Tr. 21, 

which the State’s current blanket ban plainly violates.

CONCLUSION 

This Court should grant Plaintiff’s Emergency Motion for a Temporary 

Restraining Order or Preliminary Injunction.

Dated this 29th day of June, 2020.

Respectfully submitted,

/s/ Misha Tseytlin 

MISHA TSEYTLIN

SEAN T.H. DUTTON

TROUTMAN SANDERS LLP

227 W. Monroe Street, Suite 3900

Chicago, IL 60606

Telephone: (608) 999-1240

Facsimile: (312) 759-1939

misha.tseytlin@troutman.com

sean.dutton@troutman.com

BLAKE T. HANNAFAN

HANNAFAN & HANNAFAN, LTD.

180 N. Lasalle Street

Suite 3700

Chicago, IL 60601

(312) 527-0055

(312) 527-0220 (fax)

bth@hannafanlaw.com

Attorneys for Plaintiff John McDonald

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CERTIFICATE OF SERVICE 

I hereby certify that on the 29th day of June, 2020, a true and accurate copy of 

the foregoing was served via the Court’s CM/ECF system upon all counsel of record.

/s/ Misha Tseytlin 

Misha Tseytlin

Troutman Sanders LLP

227 W. Monroe Street 

Suite 3900

Chicago, IL 60606

(608) 999-1240

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

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