S. JAMES OTERO, District Judge.
This matter is before the Court on Plaintiff D.R.'s ("Plaintiff")
Plaintiff is a 17-year old high school senior at Eastside High School in Lancaster with Charcot-Marie-Tooth Disease ("CMT"), a genetic progressive neurological disorder that affects the limbs, particularly her legs. (Complaint ("Compl.") ¶ 3; Declaration of D.R. in Support of Pl.'s Mot. ("D.R. Decl.") ¶ 3.) Plaintiff alleges that she has reduced hand and leg strength because of her CMT disorder, and ascending stairs is impossible for her. (Pl.'s Mot. 2:10-16; D.R. Decl. ¶¶ 7, 8.) Therefore, the disorder denies her access to the second floor of her high school, which was recently constructed and opened in August 2009. (Compl. ¶ 1.) Most of Plaintiffs classes are held in a two-story "Classroom Building," which has four elevators that are kept locked and can only be operated by an elevator key. (Pl.'s Mot. 2:25-3:4.) The school library, career center, and classrooms are located on the second floor of the Classroom Building. (D.R. Decl. ¶ 13.)
Plaintiff began attending Eastside High School in August of 2009 as a junior. (Pl.'s Mot. 2:22-24.) Previously, Plaintiff had spent her freshman and sophomore years at another school in the same district that consisted of only one-story. (D.R. Decl. ¶ 11.) At the end of her freshman year, Plaintiff received a Rehabilitation Act Section 504 ("Section 504") and American with Disability Act ("ADA") Accommodation Plan, which allowed her, among other things, extra time between classes and to complete her assignments. (D.R. Decl. ¶ 11.) Soon after enrolling at Eastside High School, Plaintiffs mother requested a meeting to revise Plaintiffs Section 504/ADA Plan to include elevator access. (Pl.'s Mot. 3:27-4:2.) Defendant revised Plaintiffs Section 504/ADA Plan to have staff or teachers make elevators available for her, but denied Plaintiffs request for an elevator key. (Pl.'s Mot. 4:2-7.)
No evidence has been provided to show that Plaintiff is less than a good student.
In the fall of 2009, Plaintiff frequently missed between 10 to 45 minutes of class time while waiting for a staff or teacher to provide access to an elevator. (D.R. Decl. ¶ 19.) She further missed class time to use the restroom because she could not do so between classes. (Pl.'s Mot. 3:23-25.) The tardiness and disruptions forced her to drop two Advance Placement ("AP") classes. (Pl.'s Mot. 4:13-16.) Plaintiff sometimes called her mother and her mother would have to call the school so that someone with an elevator key could be dispatched to unlock the elevator. (Declaration of Jennifer R. in Support of Pl.'s Mot. ("Jennifer R. Decl.") ¶ 7.)
After the denial of the request for an elevator key, Plaintiffs mother retained counsel. (Jennifer R. Decl. ¶ 11.) Plaintiffs counsel wrote a demand letter on February 12, 2010 and held a meeting with the Defendant on March 2, 2010. (Pl.'s Mot. 5:1-7.) On March 9, 2010, Plaintiff requested a due process hearing pursuant to the Individuals with Disabilities Education Act ("IDEA"). (Def.'s Mot. 1:18-19.) Plaintiff also requested a Section 504 due process hearing on March 26, 2010. (See Def.'s Mot. 1:19-21.) At a meeting on March 17, 2010, Plaintiffs mother allegedly refused to authorize Defendant to assess Plaintiffs eligibility under IDEA and Defendant purportedly provided a "Mobility Plan" that created a "Mobility Liaison" to open the elevators for Plaintiff. (See Def.'s Mot. 1:25-2:2; Pl.'s Mot. 5:9-17.) On April 28, 2010, Defendant moved to dismiss Plaintiffs due process complaint and Administrative Law Judge Susan Ruff ("ALJ Ruff") granted the motion on the ground that the Office of Administrative Hearings ("OAH") did not have jurisdiction over the claims. (Def.'s Mot. 2:4-9.)
After Defendant implemented its Mobility Plan, Plaintiff still missed class time because the Mobility Liaison was late, absent, or without an elevator key. (D.R. Decl. ¶ ¶ 37, 38, 40.) Plaintiff rejected the accommodation to have a full-time Mobility Liaison because Plaintiff felt self-conscious and it brought unwanted attention and scrutiny. (See Exhibit ("Ex.") I to Declaration of Alan Varner ("Varner Decl.") in Support of Def.'s Opp'n.) Plaintiff began her senior year on August 9, 2010. (Pl.'s Mot. 6:19.) On June 25, 2009, Plaintiff filed suit against Defendant for violations under the ADA, Section 504, and the California Unruh Act ("Unruh Act"). (See generally Compl.) Plaintiff moved for a preliminary injunction on July 30, 2010 and prayed the Court to enjoin Defendant to provide her with an elevator key. (Pl.'s Mot. 19-20.)
A plaintiff seeking a preliminary injunction must establish that: (1) she is likely to succeed on the merits; (2) she is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in her favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). In the Ninth Circuit, preliminary
IDEA is a "comprehensive educational scheme, conferring on disabled students a substantive right to public education and providing financial assistance to enable states to meet their educational needs." Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir.1992) (citation omitted). To receive financial assistance, state and local educational agencies must ensure that children with disabilities are guaranteed specified procedural safeguards, such as an impartial due process hearing and an appeal. See Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1274 (9th Cir.1999); 20 U.S.C. §§ 1415(f), (g). The IDEA does not restrict or limit the rights of disabled students or their parents under other statutes like the ADA and Section 504. 20 U.S.C. § 1415 (f). The IDEA, however, requires administrative exhaustion prior to the filing of a civil action "seeking relief that is also available under" the IDEA. 20 U.S.C. § 1415 (I).
The Ninth Circuit has held that "[i]f a plaintiff is required to exhaust [IDEA] administrative remedies but fails to do so, the federal courts do not have jurisdiction to hear the plaintiff's claim." Blanchard v. Morton Sch. Dist., 420 F.3d 918, 920-21 (9th Cir.2005) (citing Witte, 197 F.3d at 1274). Recent Supreme Court decisions, however, "raise questions about the extent of this rule and its continuing vitality." H.B. ex rel. P.B. v. Las Virgenes Unified Sch. Dist., 239 Fed.Appx. 342, 344 (9th Cir.2007) (unpublished); see Payne v. Peninsula Sch. Dist., 598 F.3d 1123, 1125 n. 2 (9th Cir.2010) (stating that "[i]t is unclear whether the failure to exhaust is still a jurisdictional matter").
Both parties do not dispute that Plaintiff has CMT and that an orthopedic impairment is delineated in IDEA. (Def.'s Opp'n 6:2-5; Pl.'s Reply 1:18-24.) Plaintiff, however, alleges that she is not entitled to relief under IDEA because her orthopedic impairment does not affect her educational performance. (Pl.'s Reply 2:21-23.) Plaintiff asks the Court to deem her injury as "not educational in nature" and outside the purview of IDEA. (Pl.'s Opp'n 2-6.) Defendant notably does not argue that Plaintiff is eligible for services under IDEA, but asserts that Plaintiff refused to be assessed and prevented the administrative process to go forward. (Def.'s Opp'n 5:13-7:6.) Defendant also contends that IDEA is able to provide redress on mobility concerns. (Def.'s Opp'n 5:15-17.)
Plaintiff's academic success cannot mask that her CMT does adversely affect her educational performance. See 34 C.F.R. § 300.8(c)(8). Plaintiff missed substantial classroom time because she had to wait for a school representative to unlock the elevator door. (Pl.'s Mot. 3:20-22.) She had to further miss class time to use the restroom because she could not do so between classes. (Pl.'s Mot. 3:23-25.) The disruptions forced her to drop two AP classes. (Pl.'s Mot. 4:13-16.) Plaintiff may argue that these adverse effects were caused by the Mobility Liaison rather than her CMT,
Plaintiff's use of non-special education services under Section 504 confirms that the disability adversely affects her performance. Plaintiff was granted a 5-minute grace period to get to her class to avoid crowds of students that could knock her over. (D.R. Declaration for Pl.'s Reply ("D.R. Supp. Decl.") ¶ 5.) In May 2008, Plaintiff obtained several accommodations, including: (1) extra time to go to and from class; (2) extra set of textbooks to keep at home so she did not have to carry them around; and (3) permission to see the Health Office during extreme weather conditions. (Ex. B to Jennifer R. Decl. ¶ 4.) Plaintiff also obtained extra time to complete assignments. (D.R. Decl. ¶ 11.) "But for" these non-special education services, Plaintiff may not have an impressive 3.8 GPA. See Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1375 (8th Cir. 1996) (finding impairment had an adverse impact); but see Ashli C. v. Hawaii, 2007 WL 247761, at *9 (D.Haw. Jan. 23, 2007) (student not harmed if able to learn and function at an average level in a regular classroom).
Though her orthopedic impairment adversely affects her education, Plaintiff does not meet an essential qualification to obtain remedy under IDEA; she cannot show a need for special education. IDEA expressly provides that a child must need special education and related services. 20 U.S.C. § 1401(3)(A); Cal. Educ. Code § 56026(a). To determine "eligibility and educational need," a court may consider "a variety of sources, including aptitude and achievement tests ... and adaptive behavior." 34 C.F.R. § 300.306(c)(1)(i). A court may also consider classroom achievement and grades. See Hood v. Encinitas Union Sch. Dist., 486 F.3d 1099, 1106-07 (9th Cir.2007).
The Court is mindful that "[it] should not substitute [its] own notions of sound educational policy for those of the school authorities which [it] review[s]." Seattle Sch. Dist., No. 1 v. B.S., 82 F.3d 1493, 1499 (9th Cir.1996) (citation omitted). "Because Congress intended states to have the primary responsibility of formulating each individual child's education, [the Court] must defer to their `specialized knowledge and experience' by giving `due weight' to the decisions of the states' administrative bodies." Amanda J. v. Clark County Sch. Dist., 267 F.3d 877, 888 (9th Cir.2001) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-08, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)). Nonetheless, "whether or not a child is entitled to receive services under IDEA is statutorily defined and not a matter of educational policy." Yankton, 93 F.3d at 1376 n. 9. Therefore, "a court determines ... [whether] the requirements of the Act have been met, [while] questions of methodology are for resolution by the States." Rowley, 458 U.S. at 208, 102 S.Ct. 3034; see also W.H. ex rel. B.H. v. Clovis Unified Sch. Dist., 2009 WL 1605356, at *21 (E.D.Cal. June 8, 2009) ("This Court has the authority to determine whether a Student is eligible for special education and related services under the IDEA.").
The undisputed facts of this matter support the conclusion that Plaintiff does not require special education and related services. Plaintiff takes rigorous AP classes with the general student body. (See D.R. Decl. ¶ 21.) She has a stellar academic record, with a 3.8 GPA. (D.R. Decl. ¶ 16.) Plaintiff is also active in the student body as a member of the student group Lion
The Court is aware of Yankton School District v. Schramm, 93 F.3d at 1376, where the Eighth Circuit held that a student with orthopedic impairment was eligible under IDEA, even though the student enrolled and succeeded in a regular curriculum. The appellate court determined that modifications to a regular classroom program pursuant to Section 504, such as mobility assistance, provision of multiple text books, and shortening writing assignments, constituted "specialized instruction and services." See id. at 1375. The court found that the student was not only eligible under IDEA, but also that she needed the special education. See id. at 1375-76.
The Court respectfully declines to follow Yankton's non-binding ruling because it conflicts with statutory language and Ninth Circuit case law. Special education is "specially designed
The factual record shows that Plaintiff's needs were being met through modifications like extra time between classes and to turn in work, an extra set of textbooks, and permission to sit on a chair rather than the floor. (See Jennifer R. Decl. ¶ 4; D.R. Decl. ¶ 16.) These were not special, individualized instructions; the modification
The record also reveals that the current modification to provide a Mobility Liason is not meeting Plaintiff's needs. (See D.R. Decl. ¶¶ 37, 38, 40.) Plaintiff recently began attending the new school and her needs have changed. (Jennifer R. Decl. ¶ 5.) Nonetheless, the failure of the current modification does not make Plaintiff eligible under IDEA. The Education Code makes clear that an individual with exceptional needs is one whose impairment requires special education and whose needs "cannot be [met] ... with modification[s]." Cal. Educ. Code § 56026(b). Therefore, if a modification is available to meet Plaintiff's needs, she does not qualify as an individual with exceptional needs and is ineligible under IDEA. The provision of an elevator card is such a modification that can meet Plaintiff's needs.
Accordingly, Plaintiff does not meet the statutory definition of a disabled child under IDEA or an individual with exceptional needs under the Education Code.
Defendant asserts that Plaintiff should be judicially estopped from arguing that she is ineligible for special education because Plaintiff filed a request for an IDEA due process hearing. (Def.'s Reply 2:1-17.)
Judicial estoppel is an equitable doctrine invoked by a court at its discretion to prevent parties from deliberately changing positions according to the exigencies of the moment, and thereby, demeaning the integrity of the judicial process. See New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). The doctrine cannot be reduced to an exhaustive formula. Id. at 750, 121 S.Ct. 1808. Three factors, however, generally determine whether a court should apply judicial estoppel: (1) whether a party's later position is clearly inconsistent with its earlier position; (2) whether the party achieved success in the prior proceeding; and (3) whether the party asserting an inconsistent position would achieve an unfair advantage if not estopped. United Steelworkers of Am. v. Ret. Income Plan for Hourly-Rated Employees of ASARCO, Inc., 512 F.3d 555, 563 (9th Cir.2008).
Defendant's claim for judicial estoppel contradicts Defendant's own evidence. First, it is not clear that Plaintiff's
Defendant posits that Plaintiff's mother "refused to have plaintiff undergo any assessment by the [Defendant] to determine eligibility." (Def.'s Opp'n 7:1-2.) Defendant further alleges that it "does not have recourse if [a] parent refuses the initial assessment ... [and that] [w]ithout a determination of eligibility under IDEA, the administrative process cannot go forward." (Def.'s Opp'n 7:3-4.) Defendant, thus, asks the Court to find that Plaintiff abandoned the administrative process because, among other reasons, educational experts could determine that Plaintiff is eligible for special education. (See Def.'s Reply 2-3.) The factual record persuades the Court to find otherwise.
Defendant's actions support a finding that it never considered Plaintiff eligible under IDEA. Pursuant to IDEA's "child find" provision, Defendant has a duty to identify and evaluate children who are suspected of having a qualifying disability within a reasonable time after school officials are placed on notice. See Torrance Unified Sch. Dist. v. Magee, 2008 WL 4906088, at *1 n. 1 (C.D.Cal. 2008); K.H. v. Mt. Diablo Unified Sch. Dist., 2006 WL 1867679, at *5 (N.D.Cal. July 6, 2006); O.F. ex rel. N.S. v. Chester Upland Sch. Dist., 246 F.Supp.2d 409, 417-18 (E.D.Pa.2002). Defendant has been aware of Plaintiff's CMT since she began attending high school in the district and was provided a Section 504/ADA Plan on May 8, 2008. (Jennifer R. Decl. ¶ 4.) Since 2008, Defendant has made no attempts at assessing Plaintiff to determine her eligibility under IDEA. (See generally Def.'s Opp'n; Def.'s Mot.) Even when Plaintiff requested a due process hearing under IDEA, rather than seek to determine Plaintiff's eligibility, Defendant moved to dismiss. (Ex. F to Brook Decl.) Assuming, arguendo, that Plaintiff's mother obstructed the administrative process, Defendant could have filed a complaint to the OAH to address the parent's refusal. Defendant is wrong in claiming that it had no recourse because ALJ Ruff expressly stated that it had jurisdiction to hear a complaint based on the "refusal to initiate or change the identification, assessment, or educational placement of a child ... [and] the refusal of a parent or guardian to consent to an assessment of a child...." (Ex. F to Brook Decl. (citing Cal. Educ. Code § 56501).) These acts either show a breach of the "child find" duty imposed by IDEA or a conscious determination by Defendant that Plaintiff is not eligible for IDEA; the Court finds the latter proposition persuasive. This factual finding is further supported by the testimony of
Thus, in fact and law, Plaintiff is not a child with disability as defined under IDEA or an individual with exceptional needs as defined under the Education Code. Since Plaintiff is not eligible for relief under IDEA, she does not need to administratively exhaust her remedies to assert claims under Section 504, the ADA, and the Unruh Act. See Bogovich v. Sandoval, 189 F.3d 999, 1002 (9th Cir.1999). Her Section 504 and ADA claims also arise under federal laws. See U.S. CONST. art. III, § 2. Plaintiff's Unruh Act claim is so related to her Section 504 and ADA claims that they form the same case and controversy. See 28 U.S.C. § 1367(a). Accordingly, the Court DENIES Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction.
Plaintiff has suffered and will continue to suffer irreparable harm if preliminary injunction is not granted. She frequently missed between 10 to 45 minutes of class while waiting for a school representative to let her use the elevators. (D.R. Decl. ¶ 19.) These absences from the classroom have detrimentally affected her academic performance and may jeopardize her stellar academic record and post-graduation prospects. (See D.R. Decl. ¶¶ 21-23.) Even after the Defendant implemented its Mobility Plan, Plaintiff still missed class time because the Mobility Liaison was late, absent, or without an elevator key. (D.R. Decl. ¶¶ 37, 38, 40.) Plaintiff also cannot participate in extracurricular activities to the same extent as other students because of her CMT and the inadequate accommodation provided by the Defendant. She could not attend student club activities and social events on the second floor. (D.R. Decl. ¶¶ 41, 42.) Plaintiff continues to have no access to the school library. (See D.R. Decl. ¶ 44.) Moreover, Plaintiff suffers irreparable harm to her emotional development. She must choose between two unacceptable options: (1) having to helplessly find an individual with an elevator key anytime she may have to go downstairs or upstairs (D.R. Decl. ¶ 24); or (2) have a Mobility Liaison that follows her to each of her classroom, alienating Plaintiff and providing fodder for other children to ostracize her (Ex. I to Varner Decl.). These options likely would unduly affect Plaintiff's self worth and sense of independence.
Defendant unconvincingly challenges the factual support provided by Plaintiff regarding irreparable harm. Defendant uses numerous hearsay to dispute that Plaintiff suffers from CMT by including statements like "Plaintiff
To establish a violation under Title II of the ADA, a plaintiff must show that: "(1) she is a qualified individual with a disability; (2) she was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities, [sic] and (3) such exclusion or discrimination was by reason of her disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.2002) (citation omitted). Because "[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act
Plaintiff is a qualified individual with a disability under the ADA and Section 504. See 42 U.S.C. § 12102(1); 29 U.S.C. § 705(20)(B). Plaintiff's CMT physically impairs one or more major life activities, such as walking, standing, writing, and climbing stairs. (Jennifer R. Decl. ¶ 2.) She is a "qualified individual with a disability" because, as a 17-year old high school student who resides in Lancaster, she meets the eligibility requirements to receive a public education provided by Defendant. See CAL. CONST. art. 9, § 5 (system of common schools). Defendant does not expressly dispute Plaintiff is a qualified individual with a disability under the ADA or handicapped as defined by Section 504. (See generally Def.'s Opp'n.)
Plaintiff was excluded from class time, student club meetings, and school functions. (D.R. Decl. ¶¶ 19, 37, 38, 40, 41, 42.) Defendant does not dispute these exclusions, but argue that
Defendant's arguments are misplaced. Defendant does not dispute the very specific and credible allegations made by Plaintiff of her exclusions; such as, on February 18, 2010, no one was able to help her gain access to the elevator until 8:42 a.m. because another student needed attention. (D.R. Decl. ¶ 25.) Defendant does not refute Plaintiff's claim that, on April 1, 2010, Plaintiff's Mobility Liaison was absent, which caused Plaintiff to be 14 minutes late to class. (D.R. Decl. ¶ 31.) The record shows that several pages of similar instances were alleged by Plaintiff to which Defendant did not or could not dispute. (Compare D.R. Decl. ¶¶ 22-40 with Def.'s Opp'n 11:25-14:23.) Defendant's unsupported claim that Plaintiff's socializing caused her tardiness cannot explain the abovementioned exclusions. Furthermore, even if some services and activities have been relocated to the first floor, Plaintiff is still unable to access the school library, attend school functions, and make spur-of-the-moment decisions to go upstairs or downstairs. (D.R. Decl. ¶¶ 24, 43, 44.) Accordingly, the Court determines that Plaintiff has been and continues to be excluded from participation in Defendant's services, programs, and activities.
The Department of Justice ("DOJ") promulgates regulations to implement the ADA, 28 C.F.R. §§ 35.149-.151, and the DOJ's interpretation of the regulations must be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulations, Alhambra Hosp. v. Thompson, 259 F.3d 1071, 1074 (9th Cir.2001). The regulations require a public entity to "operate each service, program or activity so that the service, program, or activity, when viewed in its entirety, is readily
Plaintiff was excluded from class time, student club meetings, school functions, and academic services because of her CMT disability. (D.R. Decl. ¶¶ 19, 37, 38, 39, 41, 43.) Defendant had elevators, but Plaintiff could neither access nor use them by herself. (D.R. Decl. ¶¶ 19, 37, 38.) By locking the elevators, Defendant prevented Plaintiff from partaking in Defendant's services and programs. Accordingly, with deference to the DOJ's interpretation, the Court finds that Plaintiff was excluded on the basis of her disability.
After meeting the initial burden of producing evidence that Plaintiff is qualified under the ADA and Section 504, Plaintiff has to show the existence of a reasonable accommodation. Zukle, 166 F.3d at 1047. Such a showing shifts the burden to Defendant, who has to produce evidence that the accommodation requested would require a fundamental or substantial modification of its programs and standards. Id. "Because the issue of reasonableness depends on the individual circumstances of each case," a determination of whether an accommodation is reasonable "requires a fact-specific, individualized analysis of the disabled individual's circumstances and the accommodations that might allow him to meet the program's standards." Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (9th Cir.1999). "[M]ere speculation that a suggested accommodation is not feasible falls short of the ... requirement." Id. (quotes omitted).
Plaintiff has met her burden of showing the existence of a reasonable accommodation by suggesting that Defendant provide her with an elevator key so that she may independently use the elevator, attend class on time, and participate in all school functions and activities. This accommodation addresses the failings of the current accommodations; she will neither need to rely on a Mobility Liaison who is often late, absent or without an elevator key nor have to feel self-conscious and demeaned by a full-time aid. Though neither party has addressed costs, presumably, an elevator key is financially more prudent than a salary for a full-time liaison. Lastly, Defendant's argument that, because Plaintiff is slow at handwriting, she is unable to turn an elevator key is unavailing. (See Def.'s Opp'n 11:10-14.) If Plaintiff can grip a pen, she can likely hold an elevator key.
Defendant also objects to the request through the conclusory claim that the provision of an elevator key amounts to a substantial modification of programs or standards. (Def.'s Opp'n 10:19-25.) Defendant asserts that access to the elevator key will present "safety and security risks to [P]laintiff and others due to the inability to supervise the use and operation of the elevator...." (Def.'s Opp'n 11:2-3.) Defendant cites how it "had to cordon off some areas of its
Accordingly, the Court determines that Defendant fails to meet its burden of proving that the reasonable accommodation suggested by Plaintiff constitutes a fundamental or substantial modification of its programs and standards. The Court makes this determination carefully and with proper deference to Defendant's expertise in supervising and educating youths. But cf. Zukle, 166 F.3d at 1048 (implying that deference is only appropriate when modifications entail "academic decisions"); see also Wong, 192 F.3d at 818-19 (not entitled to deference if defendant
For the above reasons, Plaintiff shows that she is likely to succeed on the merits. Even assuming she does not, Plaintiff raises serious questions on the merits of her claims.
The Court must balance an elevator key against a child's education and emotional development. The balance, not surprisingly, tips sharply in favor of Plaintiff. Having addressed Plaintiff's irreparable harm and Defendant's argument of substantial modification, the Court declines to restate its previous analysis. Defendant does not even mention any hardship it would suffer from the provision of an elevator key to Plaintiff, other than the mere speculation that it would lead to student mischief. (See generally Pl.'s Opp'n.) Accordingly, the Court finds that the irreparable harm to Plaintiff overwhelmingly tips the balance of hardships in favor of Plaintiff.
The Rehabilitation Act and ADA embody the public interest in "empower[ing] individuals with disabilities to maximize... independence, and inclusion and integration into society...." 29 U.S.C. § 701(b). Congress passed these laws because:
42 U.S.C. § 12101(a)(3)-(5). By granting the preliminary injunction, the Court will be furthering these public interests. Plaintiff, despite her disability, will be able to independently use the elevators and access all facilities without relying on someone else's help. Her sense of self-worth and emotional development should not be stymied by overprotective rules and policies put in place because of speculative fears of student mischief. Plaintiff will have access to classroom time, school functions, and student club activities like any other non-disabled student. "That is what the law requires and the [IDEA] strives for: giving students access to the general curriculum and keeping them from being labeled special education." Marshall Joint Sch. Dist., 616 F.3d at 640 (citing 20 U.S.C. § 1412(a)(5)).
Accordingly, the Court GRANTS Plaintiff's Motion for Preliminary Injunction. Because the law and facts clearly favor the Plaintiff, she has met her burden for a mandatory injunction. Indeed, if there were ever an instance where a mandatory injunction should be granted, the case at hand is such an instance. Plaintiff only seeks an elevator key to provide her the same rights and privileges to a public education as her non-disabled peers. Let Defendant be enjoined with haste; Plaintiff has suffered enough irreparable harm.
For the foregoing reasons, Plaintiff's Motion for Preliminary Injunction is
IT IS SO ORDERED.
