Traci Berardelli v. Allied Services Institute of R

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1469
_____________
TRACI BERARDELLI; JOSEPH BERARDELLI, on behalf
of their daughter M.B., a minor, and individually on their own
behalf,
Appellants
v.
ALLIED SERVICES INSTITUTE OF REHABILITATION
MEDICINE
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 3-14-cv-00691)
District Judge: Hon. Malachy E. Mannion
_______________
Argued: November 14, 2017
Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges.
(Opinion Filed: August 14, 2018)
Leah S. Batchis
Arleigh P. Helfer, III [Argued]
Nancy Winkelman
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Nicole M. Reimann, Esq.
Batchis Nestle & Reimann
116 Bala Avenue
Bala Cynwyd, PA 19004
Counsel for Appellants
Edwin A. Abrahamsen, Jr.
James J. Conaboy [Argued]
Abrahamsen Conaboy & Abrahamsen
1006 Pittston Avenue
Scranton, PA 18505
Counsel for Appellee
Amanda L. Nelson
Cozen O’Connor
45 Broadway
16th Floor
New York, NY 10006
Counsel for Amicus Curiae The Public Interest Law
Center of Philadelphia
2
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
For decades, the Rehabilitation Act (RA) and its
progeny, the Americans with Disabilities Act (ADA), have
served as twin pillars of federal disability discrimination law.
Both statutes secure the rights of individuals with disabilities
to independence and full inclusion in American society and,
unsurprisingly, have been constant companions in our case law
as it has developed to effect those rights. The RA assures
“meaningful access” to federally funded programs, Alexander
v. Choate, 469 U.S. 287, 301 (1985), on the one hand, and the
ADA provides for “full and equal enjoyment” of public
accommodations, 42 U.S.C § 12182(a), on the other, to people
with disabilities. When necessary to realize that access and
enjoyment, the statutes require “reasonable accommodations,”
Choate, 469 U.S. at 301, or “reasonable modifications,” 42
U.S.C. § 12182(b)(2)(A)(ii), to be made by actors within the
statutes’ reach.
The Department of Justice (DOJ) has promulgated
regulations interpreting the ADA’s “reasonable modification”
requirement to mean that covered actors generally must
“modify policies, practices, or procedures to permit the use of
a service animal by an individual with a disability,” 28 C.F.R.
§ 36.302(c)(1); see also id. § 35.136(a), and must “permit[]
[such individuals] to be accompanied by their service animals
in all areas of [the covered actor’s facilities] where . . . program
participants . . . are allowed to go,” id. § 36.302(c)(7); see also
id. § 35.136(g). The question presented by this case is one of
3
first impression in the Courts of Appeals: whether, in the
absence of a similar regulation specifically interpreting the RA,
its mandate of “reasonable accommodations,” consistent with
the mandate of “reasonable modifications” under the ADA,
generally requires that individuals with disabilities be
permitted to be accompanied by their service animals and, thus,
renders such requested accommodations per se reasonable in
the ordinary course.
For the reasons set forth below, we hold that it does and
that the District Court’s contrary jury instructions constitute
reversible error. Accordingly, we will vacate the judgment and
remand for further proceedings consistent with this opinion.
I. Factual Background
This case centers on an elementary school student with
dyslexia and epilepsy, M.B., and her rebuffed attempts to be
accompanied by her service dog to school. When M.B. was a
young child, her mother had to monitor her constantly and care
for her during epileptic seizures, the onset of which could be
subtle or sudden. As M.B. grew older and became more
independent, though, her pediatric neurologist recommended
that she obtain a service dog to take over this function.1 M.B.’s
1
People with epilepsy commonly rely on the functional
assistance of service dogs to provide care and support and to
maintain their independence. Service dogs can be trained to
detect and respond to seizures, such as by barking to alert the
family when a child has a seizure while playing in another
room, and to provide assistance throughout the seizure’s
duration, such as by lying next to the child to prevent injury.
See Pub. Interest Law Ctr. Amicus Br. 4.
4
mother therefore arranged to acquire a service dog, which
accompanied M.B. to school during second grade and helped
her cope with her epilepsy by alerting during a seizure and
providing safety and comfort until the seizure had passed.
In third grade, M.B. switched to the dePaul School,2
which had a specialized program for dyslexic students. Before
enrolling M.B. there, M.B.’s mother met with the principal and
explained that, in addition to dyslexia, M.B. also had epilepsy
and that the service dog, who had recently died, had
accompanied M.B. to her previous school. M.B.’s mother also
explained that M.B. was on the waiting list for a new service
dog that likewise would need to accompany her to school.
After receiving assurances from the principal that M.B. was a
“very good fit” for the School, M.B.’s mother enrolled her that
fall as a third grader. JA 501.
That winter, M.B. came off the waiting list and was
paired with a new service dog, Buddy. But when M.B.’s
mother asked the principal for permission to send Buddy to
school with M.B., the principal refused, asserting for the first
time that Buddy would be “too much of a distraction” to other
children. JA 673. Because Buddy was not allowed to
accompany her, M.B. missed the next two weeks of school to
be with Buddy 24 hours a day for an initial intensive bonding
period. And after M.B. returned to school, because the
principal continued to deny permission for Buddy to
accompany her throughout the remainder of third grade, Buddy
was not available to alert school staff during seizure activity or
2
Appellee Allied Services Institute of Rehabilitation
Medicine operates the dePaul School. We will refer to these
entities collectively as “the School.”
5
to support her recovery. As a result, M.B.’s mother kept M.B.
home when her seizures were more severe.
In an effort to avoid these interruptions to M.B.’s
education, M.B.’s mother met with the principal again before
fourth grade to request that Buddy be permitted to accompany
M.B. in the new school year. By that time, Buddy not only
could alert during M.B.’s seizures, but also could predict and
alert to them minutes before they even began. But the principal
still refused, once more asserting that Buddy might distract
other students. Yet again, M.B. attempted to attend without
Buddy, but that year she missed 65 days of school—more than
one-third of the school year—with seizure activity accounting
for about half of her absences.
A devoted advocate, M.B.’s mother sought permission
again on the eve of fifth grade for Buddy to accompany M.B.
to school, pointing out that M.B.’s seizures were increasing in
frequency, which exacerbated the concerns about her attending
without Buddy’s assistance. But again the principal refused,
citing possible distraction, and so once more M.B. started the
school year unaccompanied by Buddy. Without her service
animal, however, M.B. became anxious and distracted at
school, afraid of enduring the increased seizure activity. Her
mother therefore met again with the principal to renew her
request for Buddy to accompany M.B. to school and to advise
the principal that M.B.’s pediatric neurologist had
recommended that Buddy “should be at school with her.” JA
530. The principal promised to “look into” the request. JA
531.
Unsatisfied with that answer, M.B.’s mother simply
began bringing Buddy to school with M.B. in the morning.
Each day she did so, however, the principal stopped them at
6
the entrance of the School and refused to allow Buddy to enter.
The principal also offered a new explanation: Instead of
pointing to the possibility of distraction, the principal said she
had discovered that another student in the School was allergic
to dogs.
At that point, given M.B.’s growing anxiety and
distraction and the medical risks associated with attending
school without Buddy, M.B. stayed home from school for more
than two months while her mother continued her efforts to
obtain an accommodation from the School. Those efforts
included leaving telephone messages, having her attorney send
letters, and forwarding a note she obtained from M.B.’s
pediatrician that explained that, because M.B.’s “seizure
activity has escalated and is not always obvious, it is medically
necessary for ‘Buddy,’ [her] trained seizure dog, to be with her
24 hours [a day] / 7 days a week.” JA 1396. A teacher at the
School also provided the principal with an informational article
about seizure alert dogs that detailed how they are able to
predict and alert to seizures and give their owners time to move
to a safe place, take medication, call for help, and notify others
about the impending seizure for later monitoring. And the
parents of the student who was allergic to dogs, for their part,
informed the principal that they had arranged for allergy
treatments for their son and did not want M.B. to be excluded
from the School on his behalf.
After weeks of back-and-forth effort, the principal
finally agreed that M.B. could return with Buddy, but only on
the condition that Buddy at all times wear a special therapeutic
shirt designed to decrease allergens. Thus, in January of fifth
grade, M.B. finally returned to school, this time with Buddy.
But her return was short-lived. The special hypo-allergenic
shirt made Buddy overheated, causing him to pant and to fail
7
to alert or respond when M.B. had seizures. After two weeks
of these conditions, M.B.’s mother learned that M.B had slept
on the floor of the principal’s office for hours after seizing
without Buddy’s intervention. The next day, she withdrew
M.B. from the School permanently.
Eventually, M.B. was enrolled in the local public
school, which allowed Buddy to accompany her. By that point,
however, M.B.’s testing showed that she had fallen too far
behind to resume or even to repeat fifth grade. Instead, she was
required to enter as a fourth grader.
II. Procedural Background
M.B.’s parents sued the School, asserting that it had
failed to accommodate M.B. in violation of § 504 of the
Rehabilitation Act (RA), Title III of the Americans with
Disabilities Act (ADA), and the Pennsylvania Human
Relations Act (PHRA).3 After discovery, the School moved
for summary judgment on all claims, and the District Court
granted that motion as to the ADA and PHRA claims.
Regarding the ADA claim, the Court noted that M.B.’s
parents only sought damages and explained that damages are
not an available form of relief under Title III of the ADA. As
for the PHRA claim, the District Court summarily stated, “the
analysis of an ADA claim applies equally to a PHRA claim,”
JA 23, and dismissed it on that basis.
3
M.B.’s parents brought additional state law claims, but
they do not challenge the District Court’s dismissal of those
claims on appeal.
8
The District Court then turned to the RA claim.
Observing that the substantive standard of liability to prove
discrimination under § 504 of the RA was “materially
identical” to the standard under the ADA, JA 27 (citation
omitted), the Court looked for guidance to the DOJ’s
regulations implementing the ADA, which require that
“reasonable modifications” be made when necessary to avoid
disability discrimination, 28 C.F.R. §§ 35.130(b)(7)(i),
36.302(a). It identified two particular ADA regulations
pertaining to service animals—one applicable to public
entities, id. § 35.136, and one applicable to public
accommodations, id. § 36.302.4 In both, the DOJ interprets
“reasonable modifications” to mean that covered actors “shall
modify [their] policies, practices, or procedures to permit the
use of a service animal by an individual with a disability.” Id.
§§ 35.136(a), 36.302(c)(1). Determining that the DOJ’s
interpretation of the ADA was equally applicable to the RA
and was therefore “enforceable against [the School] in
deciding whether it violated federal law,” JA 29, the District
Court concluded that there were genuine disputes of material
fact as to whether the School failed to accommodate M.B.
under the RA and denied its summary judgment motion as to
that claim. The parties then proceeded to a jury trial, with the
District Court continuing to indicate that the ADA service
animal regulations were controlling by, for example, excluding
4
Under Title II of the ADA, “public entities” include all
programs of state and local governments. See 42 U.S.C.
§ 12131(1). Under Title III, “public accommodations” include
most places that are generally open to the public, including
schools. See id. § 12181(7). The School concedes that it is a
public accommodation subject to Title III of the ADA and its
implementing regulations.
9
testimony from Buddy’s trainer about whether it was
reasonable for Buddy to wear the hypo-allergenic shirt on the
ground that “[r]easonableness has already been determined by
D.O.J. regulations.” JA 262.
Three days later, however, the District Court sharply
reversed course. First, it disallowed deposition testimony
about the service animal regulations on the ground that “the
A.D.A. is not in this case.” JA 810. And second, when it came
time for jury instructions and M.B.’s counsel proposed an
instruction that mirrored the regulations that the District Court
had found enforceable at the summary judgment phase,5 the
Court rejected it, asserting that, at trial, “the standard is
different.”6 JA 984.
5
The “Denial of Use of Service Animal” instruction
would have read: “The law provides that generally [the School]
must modify its policies, practices, or procedures to permit the
use of [M.B.]’s service dog, and [M.B.] must be permitted to
be accompanied by Buddy in all areas of the [School] where
students are allowed to go.” JA 210.
6
In rejecting the instruction, the District Court also took
issue with counsel’s mistaken citation to the ADA public entity
regulation, 28 C.F.R. § 35.136—which does not apply to the
School—instead of the materially identical ADA public
accommodation regulation, 28 C.F.R. § 36.302—which does.
But as the Court was aware of both regulations and we are
confident that it sought to advise the jury as to the proper
standard under the law, we interpret its rejection of the
proposed instruction to mean that it believed, at that point, that
the ADA service animal regulations did not bear on the
interpretation of “reasonable accommodations” under the RA.
10
Instead, the District Court instructed the jury that, to
prevail on a claim for failure to accommodate, plaintiffs were
required to “prov[e] by a preponderance of the evidence that
the requested accommodations” were “reasonable,” and further
defined that term as meaning “necessary to avoid
discrimination on the basis of a disability,” or, “[i]n other
words . . . necessary to permit [M.B.] meaningful
participation.” JA 1007. Only if the plaintiffs proved the
accommodations were “necessary to avoid discrimination . . .
on the basis of [M.B.]’s disability,” the Court advised, would
“the burden shift[] to [the School] to prove by a preponderance
of the evidence that the requested accommodations were
unreasonable.” JA 1008.
Apparently confused as to how these instructions
related to the need to accommodate service animals, the jury
sent the Court a question the same day requesting “up to date
specific information re: service dogs pertaining to act
#504/ADA.” JA 1998. At that point, M.B.’s counsel again
urged the Court to instruct the jury on the ADA service animal
regulations, but the Court again declined, stating that it had
already “g[iven] them the law that relates to this case” and
would not “go look for some new law to tell them about or
some different law or something that’s not been already
submitted or given to them.” JA 1089. The jury then returned
a verdict for the School.
M.B.’s parents timely appealed, seeking reversal of the
dismissal of their PHRA claim as well as a new trial on their
RA claim on the ground that the District Court did not properly
instruct the jury on the applicable law.
11
III. Jurisdiction and Standard of Review
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367, and we have jurisdiction under 28
U.S.C. § 1291. We review de novo the District Court’s
decision to grant summary judgment, which “is appropriate
only where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law.” Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008).
Whether jury instructions state the proper legal standard is a
legal question over which we exercise plenary review. United
States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995).
IV. Analysis
Focusing primarily on their RA claim, Appellants argue
that because the substantive standards for liability under the
RA and the ADA are the same, the service animal regulations
interpreting “reasonable modifications” under the ADA apply
equally to “reasonable accommodations” under the RA.
Therefore, according to Appellants, actors covered by the RA
must modify their policies to allow for the use of service
animals by individuals with disabilities to the same extent as
actors covered by the ADA. For the reasons we explain below,
we agree.
First, we explain why we conclude—based on (1) the
interplay between the two statutes, (2) case law interpreting
them to have identical substantive standards of liability, (3) the
DOJ’s interpretation of the “reasonable modification”
requirement in the ADA service animal regulations, and (4)
consonant guidance from the Department of Education (DOE)
in the RA context—that the “reasonableness” of an
accommodation or a modification under either statute must be
12
interpreted the same way. Thus, it constitutes discrimination
under the RA, to the same extent as under the ADA, to refuse
to permit disabled individuals to be accompanied by service
animals. Second, we address the School’s arguments to the
contrary. And finally, we consider the ramifications of our
holding for the judgment on the RA claim and briefly explain
why the dismissal of the PHRA claim must be reversed.
A. The Relationship Between the RA and the
ADA
1. Statutory History
To understand the interplay between the RA’s
“reasonable accommodation” requirement and the ADA’s
“reasonable modification” requirement, and therefore to
determine the relevance of the ADA service animal regulations
for actors covered by the RA, we must first understand the
relationship between the two statutes.
The Rehabilitation Act of 1973 “was the first broad
federal statute aimed at eradicating discrimination against
individuals with disabilities.” Helen L. v. DiDario, 46 F.3d
325, 330 (3d Cir. 1995), as amended (Feb. 2, 1995). The heart
of the statute, § 504, established that “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 29
U.S.C. § 794(a). This prohibition of discrimination on the
basis of a disability included an affirmative obligation,
recognized by the Supreme Court in Alexander v. Choate, that
“an otherwise qualified handicapped individual must be
provided with meaningful access to the benefit that the grantee
13
offers” and that federally funded programs were required to
make “reasonable accommodations” or “reasonable
modifications,” although not “fundamental or substantial”
ones, when necessary to assure such “meaningful access.” 469
U.S. at 300–01 (citation omitted); see also Ams. Disabled for
Accessible Pub. Transp. (ADAPT) v. Skinner, 881 F.2d 1184,
1192 (3d Cir. 1989) (en banc) (explaining that Choate
established under the RA a requirement of “reasonable
modifications to accommodate the disabled” or a “duty to
accommodate”).
After nearly two decades of experience with the statute,
Congress acknowledged that the RA had “shortcomings and
deficiencies,” such as “the limited extent of its coverage,” that
were impeding its effectiveness in eliminating disability
discrimination. Helen L., 46 F.3d at 331. Consequently, in
1990, Congress enacted the ADA “as a ‘clear and
comprehensive national mandate’ designed to eliminate
discrimination against individuals with physical and mental
disabilities across the United States.” McGann v. Cinemark
USA, Inc., 873 F.3d 218, 221 (3d Cir. 2017) (quoting 42 U.S.C.
§ 12101(b)(1)). “To effectuate its sweeping purpose,” PGA
Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001), Congress
designed the ADA to fit hand in glove with the RA, leaving
intact the “scope of protection . . . under the [RA],” Menkowitz
v. Pottstown Mem’l Med. Ctr., 154 F.3d 113, 120 (3d Cir.
1998), but extending its reach beyond federally funded
programs to three “major areas of public life,” PGA Tour, 532
U.S. at 675, including employment (Title I), see 42 U.S.C.
§§ 12111–12117; public entities, i.e., state and local
governments and their programs (Title II), see id. §§ 12131–
12165; and public accommodations (Title III), see id.
§§ 12181–12189.
14
As relevant here, the extension of these protections in
Title III to “public accommodations” was the most far-
reaching, as it prohibited discrimination on the basis of a
disability in “the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations
of any place of public accommodation” by its owner or
operator. 42 U.S.C. § 12182(a). In this way, the ADA brought
within its sweep “the wide variety of establishments available
to the nondisabled,” PGA Tour, 532 U.S. at 677, including
private schools regardless of whether they receive federal
funding,7 see 42 U.S.C. § 12181(7)(j).
Crucially, Title III of the ADA also codified the concept
of “reasonable accommodations” that the Supreme Court had
recognized for the RA in Choate. There, the Court established
that liability could be premised on a failure to make
“reasonable accommodations,” a standard that turned on (1)
whether the requested accommodation to the program was
“reasonable”; (2) whether it was necessary “to assure
meaningful access”; and (3) whether it would represent “a
fundamental alteration in the nature of [the] program.” Choate,
469 U.S. at 300–01 (citation omitted); see also Ridley Sch.
Dist. v. M.R., 680 F.3d 260, 280 (3d Cir. 2012) (identifying
these elements). Mirroring this language, Congress used the
same three criteria to define one type of “discrimination” under
the ADA as:
[1] a failure to make reasonable modifications in
policies, practices, or procedures, when [2] such
7
Title III also extended to such publicly accessible
entities as hotels, restaurants, retail stores, movie theaters,
parks, and gymnasiums. See 42 U.S.C. § 12181(7).
15
modifications are necessary to afford such
goods, services, facilities, privileges,
advantages, or accommodations to individuals
with disabilities, unless [3] the entity can
demonstrate that making such modifications
would fundamentally alter the nature of such
goods, services, facilities, privileges,
advantages, or accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii).
Also of note, although Congress here used the term
“reasonable modifications,” it used the term “reasonable
accommodations” elsewhere in the ADA without apparent
distinction. While Titles II and III defined discrimination to
include the failure to make “reasonable modifications,” id.§§ 12131(2), 12182(b)(2)(A)(ii), Title I, which applied to
employers, defined “discrimination” to include “not making
reasonable accommodations,” id. § 12112(b)(5)(A). See
Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185,
1195 n.8 (10th Cir. 2007) (observing that “Title II’s use of the
term ‘reasonable modifications’ is essentially equivalent to
Title I’s use of the term ‘reasonable accommodation[s]’”);
accord McElwee v. County of Orange, 700 F.3d 635, 640 n.2
(2d Cir. 2012) (noting that “courts use the terms ‘reasonable
modifications’ in Title II and ‘reasonable accommodations’ in
Title I interchangeably”) (collecting cases).
Shortly after enacting the ADA, Congress also
undertook to amend the RA “to ensure that the precepts and
values embedded in the [ADA] [we]re reflected in the [RA],”
S. Rep. No. 102-357, at 2 (1992), to specify “congressional
findings, purpose, and policy” for the RA, id. at 14, and to
“reaffirm[] . . . the precepts of the [ADA]”—intending such
16
principles to “guide the policies, practices, and procedures
developed under all titles of the [RA],” id. To those ends,
Congress enacted the Rehabilitation Act Amendments of 1992,
Pub. L. No. 102-569, 106 Stat. 4344 (codified as amended in
various sections of Title 29), which set forth certain threshold
findings, purposes, and policy applicable to the entire act,
echoing the ADA.
As a result, the RA, like the ADA, recognizes that
disabilities do not diminish the right to full inclusion in
American society. Compare 29 U.S.C. § 701(a)(3)(F) (finding
that “disability . . . in no way diminishes the right of
individuals” to “enjoy full inclusion and integration” in the
“mainstream of American society”), with 42 U.S.C.
§ 12101(a)(1) (finding that “disabilities in no way diminish a
person’s right to fully participate in all aspects of society”).
Both statutes aim to secure “full participation.” Compare 29
U.S.C. § 701(c)(3) (affirming the principles of “inclusion,
integration, and full participation”), with 42 U.S.C.
§ 12101(a)(7) (seeking “to assure equality of opportunity” and
“full participation”). And both statutes target the same “critical
areas” where discrimination persists, including education.
Compare 29 U.S.C. § 701(a)(5) (finding that “individuals with
disabilities continually encounter various forms of
discrimination” in eleven “critical areas,” including
education), with 42 U.S.C. § 12101(a)(3) (finding that
“discrimination against individuals with disabilities persists”
in the same eleven “critical areas”).
This history teaches that both statutes “aim to root out
disability-based discrimination, enabling each covered person
(sometimes by means of reasonable accommodations) to
participate equally to all others,” Fry v. Napoleon Cmty. Sch.,
17
137 S. Ct. 743, 756 (2017),8 and their requirements of
“reasonable accommodations” and “reasonable modifications”
are inextricably intertwined. As a general rule, “repetition of
the same language in a new statute indicates . . . the intent to
incorporate its . . . judicial interpretations as well.” Bragdon v.
Abbott, 524 U.S. 624, 645 (1998). And here, the terms
“reasonable accommodations” and “reasonable modifications”
were used interchangeably in RA case law, see Choate, 469
U.S. at 300–01; cf. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 409–
10, 412–13 (1979) (employing similar variations); Congress
then codified the requirements of Choate in the ADA,9 42
U.S.C. § 12182(b)(2)(A)(ii); and Congress itself used the terms
“reasonable modifications” and “reasonable accommodations”
in the ADA without apparent distinction, see Robertson, 500
F.3d at 1195 n.8; McElwee, 700 F.3d at 640 n.2. We conclude
that, although the statutes may diverge as to the entities they
8
Although the Supreme Court in Fry was comparing
the RA to Title II of the ADA, applicable to public entities, 137
S. Ct. at 756, “all three titles [of the ADA] have similar
purposes, that is, to eliminate discrimination in the sphere each
one covers,” Bowers v. Nat’l Collegiate Athletic Ass’n, 346
F.3d 402, 433 (3d Cir. 2003).
9
See Katie Eyer, Rehabilitation Act Redux, 23 Yale L.
& Pol’y Rev. 271, 304 (2005) (describing the “reasonable
modification” requirement as “a component of the
requirements of § 504 [of the RA] that was well established by
case law prior to the passage of the ADA”); see also Wis. Corr.
Serv. v. City of Milwaukee, 173 F. Supp. 2d 842, 849 (E.D.
Wis. 2001) (recognizing that the ADA’s “reasonable
modification” requirement is “[c]onsistent with case law under
the [RA]”).
18
cover and remedies they provide, they impose the same
substantive liability standard and require a unified approach to
the “reasonableness” of accommodations and modifications.
2. Case Law
Our conclusion that the RA and the ADA apply the
same standard of reasonableness is further compelled by the
body of case law interpreting the two statutes.
To begin, when a plaintiff sues under both the RA and
the ADA, we often “address both claims in the same breath,”
Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ.,
587 F.3d 176, 189 (3d Cir. 2009) (reversing summary
judgment as to both RA and ADA claims), “constru[ing] the
provisions of [both statutes] in light of their close similarity of
language and purpose,” Addiction Specialists, Inc. v. Twp. of
Hampton, 411 F.3d 399, 406 n.4 (3d Cir. 2005) (citation
omitted); accord Frame v. City of Arlington, 657 F.3d 215,
223–24 (5th Cir. 2011) (en banc) (recognizing that, as the
statutes “generally are interpreted in pari materia,” its “holding
applie[d] to both”). Although we may depart from this
approach on questions of reach and remedies, we generally
apply “the same standard for determination of liability,”
Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir.
2012); accord S.H. ex rel. Durrell v. Lower Merion Sch. Dist.,
729 F.3d 248, 260 (3d Cir. 2013); Argenyi v. Creighton Univ.,
703 F.3d 441, 447–51 (8th Cir. 2013), in recognition that “the
scope of protection afforded” under both statutes, i.e., the
“general prohibition[] against discrimination,” is materially the
same, Menkowitz, 154 F.3d at 120.
An essential feature of this “prohibition against
discrimination” is, of course, the duty to make “reasonable
19
accommodations” and “reasonable modifications,” and while
we have not explicitly held that those terms are synonymous,
we have assumed as much. See Haberle v. Troxell, 885 F.3d
170, 181 n.11 (3d Cir. 2018) (using the phrases “reasonable
accommodations” and “reasonable modifications”
interchangeably as to the ADA); Skinner, 881 F.2d at 1192(describing the RA as requiring “reasonable modifications to
accommodate the disabled” or a “duty to accommodate”).
The Supreme Court has done the same. For example, in
Southeastern Community College v. Davis, the precursor to
Choate, the Court discussed as actionable under the RA both
the “refusal to modify” and the “refusal to accommodate,” 442
U.S. at 413, and in Choate itself, the Court referenced both
“reasonable accommodations” and “reasonable
modifications,” 469 U.S. at 300–01. Likewise, the Court has
recognized that the RA operates “[i]n [a] similar vein” to the
ADA, requiring “certain ‘reasonable’ modifications to existing
practices in order to ‘accommodate’ persons with disabilities.”
Fry, 137 S. Ct. at 749 (quoting Choate, 469 U.S. at 299–300).
Other Courts of Appeals also have recognized that
“[a]lthough Title III of the ADA uses the term ‘reasonable
modification[s]’ rather than ‘reasonable accommodation[s],’
these terms do not differ in the standards they create.”
Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1083 (9th
Cir. 2004) (citation and alteration omitted); see also Nunes v.
Mass. Dep’t of Corr., 766 F.3d 136, 145 n.6 (1st Cir. 2014)
(stating that “there is no material difference between the
terms”); Halpern v. Wake Forest Univ. Health Scis., 669 F.3d
454, 462 n.5 (4th Cir. 2012) (finding that “[t]he standard for
reasonableness under the ADA does not differ from the one
employed under the [RA]” and therefore analyzing failure to
20
accommodate claims under both statutes together (quoting
Fortyune, 364 F.3d at 1083)).10
In short, the case law reinforces the conclusion we draw
from the statutes’ intertwined histories: The reasonableness of
an accommodation or modification is the same under the RA
and the ADA. Accordingly, while the text of the RA does not,
by itself, resolve whether accommodating the use of service
animals by individuals with disabilities is generally reasonable,
it is appropriate to consider the regulations and guidance
applicable to the ADA’s “reasonable modification”
10
In the context of the Fair Housing Act (FHA), courts
do distinguish between “reasonable accommodations” and
“reasonable modifications.” See Hollis v. Chestnut Bend
Homeowners Ass’n, 760 F.3d 531, 538 (6th Cir. 2014) (holding
that a “disabled individual alleging unlawful housing
discrimination” can rely on either “failure to make a reasonable
accommodation . . . or failure to permit a reasonable
modification”). But that is because the FHA specifically
defines discrimination to include both “a refusal to permit, at
the expense of the handicapped person, reasonable
modifications of existing premises,” 42 U.S.C.
§ 3604(f)(3)(A), and, separately, “a refusal to make reasonable
accommodations in rules, policies, practices, or services,” id.§ 3604(f)(3)(B). The FHA thus uses “modification” and
“accommodation” as terms of art, in sharp contrast to the
provisions of the ADA applicable here, where “use of the term
‘reasonable modifications’ is essentially equivalent to . . . use
of the term ‘reasonable accommodation[s].’” Robertson, 500
F.3d at 1195 n.8.
21
requirement in answering that question. With these principles
in mind, we turn to the ADA service animal regulations.
3. The Service Animal Regulations
A year after the ADA’s enactment, the DOJ, its
administering agency, promulgated a regulation that made
accommodation of the use of service animals generally
reasonable under the “reasonable modification” requirement.
See 56 Fed. Reg. 35,544, 35,565 (July 26, 1991). This
regulation, which applied only to public accommodations
under Title III, imported the “reasonable modifications”
language from the text of the ADA, see 42 U.S.C.
§ 12182(b)(2)(A)(ii), and further provided that public
accommodations “[g]enerally . . . shall modify policies,
practices, or procedures to permit the use of a service animal
by an individual with a disability,” 28 C.F.R. § 36.302(c)(1)
(1992).
Two decades later, the DOJ spoke to the subject again.
Recognizing that “there [was] no specific language in the 1991
title II regulation [applicable to public entities] concerning
service animals,” 75 Fed. Reg. 56,164, 56,191 (Sept. 15, 2010),
the DOJ promulgated a regulation for that context, using
materially identical language to provide that a public entity
“[g]enerally . . . shall modify its policies, practices, or
procedures to permit the use of a service animal by an
individual with a disability,” 28 C.F.R. § 35.136(a).
As the court observed in Alboniga v. School Board, 87
F. Supp. 3d 1319 (S.D. Fla. 2015), in an exceptionally careful
and thorough analysis of how these regulations inform the
“reasonableness” of proposed modifications under the ADA,
the service animal regulations are “consistent with and a
22
specific application of” the “reasonable modification”
requirement. Id. at 1335. They “present[] the DOJ’s holistic
view, in enforcing the ADA, of when it is reasonable, and when
it is unreasonable, to require public entities [and
accommodations] to accommodate the use of service animals.”
Id. at 1336.
On the one hand, they establish the “general rule” that
requiring covered actors to make modifications to permit the
use of service animals is reasonable. Id.; see Johnson v.
Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1060 (5th Cir.
1997) (concluding that plaintiff had satisfied his initial burden
of establishing the requested modification was “reasonable
generally or in the run of cases” and the burden then shifted to
the defendant because “[t]he regulation and commentary
reflect an administrative determination that modifying a no
animals policy to allow a service animal full access with its
owner in a place of public accommodation is generally
reasonable”).
On the other hand, they specify the limited
circumstances in which it would be unreasonable to require
these actors to allow the use of service animals: if granting
access would “fundamentally alter” the nature of the program,
28 C.F.R. §§ 35.130(b)(7), 36.302(a), or pose a “direct threat”
to the health or safety of others, id. §§ 35.139, 36.208, or if the
animal is either “out of control” or “not housebroken,”11 id.
11
The definition of a “service animal” also incorporates
certain limitations, as it means “any dog that is individually
trained to do work or perform tasks for the benefit of an
individual with a disability,” such as by “assisting an
individual during a seizure.” 28 C.F.R §§ 35.104, 36.104.
23
§§ 35.136(b)(1)–(2), 36.302(c)(2)(i)–(ii); see also id. pt. 35,
app. A, §§ 35.104, 35.136 (illustrating application of these
exceptions with specific examples). Subject to these
exceptions, however, the regulations mandate that
“[i]ndividuals with disabilities shall be permitted to be
accompanied by their service animals in all areas of [a covered
actor’s facilities] where . . . program participants . . . are
allowed to go.” Id. § 36.302(c)(7); see also id. § 35.136(g).
Put differently, if the exceptions are inapplicable, a
disabled individual’s proposed accommodation of the use of
her service animal is reasonable under the ADA as a matter of
law. See Johnson, 116 F.3d at 1064 (affirming plaintiff’s
verdict following bench trial because defendant failed to
accommodate his use of a service animal and, in view of the
service animal regulations and commentary, defendant was
required to make such modifications “unless it c[ould]
demonstrate either 1) that such modifications would
fundamentally alter the nature of the public accommodation or
2) that such modifications would jeopardize the safety of the
public accommodation”); Alboniga, 87 F. Supp. 3d at 1344
(granting summary judgment in favor of plaintiff on the ground
that, where no exception applied, plaintiff’s request for the
accommodation of her service animal was necessarily
“reasonable within the meaning of the regulations
implementing the ADA”); cf. Bronk v. Ineichen, 54 F.3d 425,
429 (7th Cir. 1995) (reasoning that “a deaf individual’s need
for the accommodation afforded by a hearing dog” is “per se
reasonable within the meaning of the [Fair Housing
Amendments Act of 1988]”).
The exclusivity of these exceptions is apparent not only
in the language and structure of the regulations—to which we
accord Chevron deference unless “arbitrary, capricious or
24
manifestly contrary to the statute,” Helen L., 46 F.3d at 332(quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 844 (1984)); see Johnson, 116 F.3d at 1060–61
(concluding the ADA service animal regulations warrant
Chevron deference); Alboniga, 87 F. Supp. 3d at 1333–37
(same)—but also as confirmed by the DOJ itself in interpreting
its regulations, an interpretation to which we must defer
“unless . . . ‘plainly erroneous or inconsistent with the
regulation,’” Chase Bank USA, N.A. v. McCoy, 562 U.S. 195,
208 (2011) (quoting Auer v. Robbins, 519 U.S. 452, 461
(1997)). In the Statement of Interest it filed in Alboniga, the
DOJ explained that the service animal regulations “reflect the
Department’s regulatory judgment that requiring [covered
actors] to make modifications to permit the use of service
animals generally is reasonable, subject to specific,
enumerated exceptions.” Statement of Interest of the United
States at 10, Alboniga, 87 F. Supp. 3d 1319 (No. 14-CIV-
60085). And that position is consistent with the DOJ’s
technical assistance, amicus briefs, and enforcement efforts
over at least the past decade. See id. at 5 n.5 (collecting
authorities). So interpreted, the regulations fulfill Congress’s
intent to ensure “the broadest feasible access be provided to
service animals in all places of public accommodation”—
permitting their exclusion only “in rare circumstances.” 28
C.F.R. pt. 36, app. C, § 36.302; see id. pt. 35, app. A, § 35.136.
When we consider these observations against the
backdrop of our earlier discussion concerning the equivalence
of “reasonable modifications” and “reasonable
accommodations,” logic dictates that the service animal
regulations, although technically interpreting the ADA, are no
less relevant to the interpretation of the RA. In the latter
context too, the general rule—subject to the same exceptions—
25
is that a grantee must “modify policies, practices, or procedures
to permit the use of a service animal by an individual with a
disability,” 28 C.F.R. § 36.302(c)(1), and must “permit[] [such
individuals] to be accompanied by their service animals in all
areas of [the grantee’s facilities] where . . . program
participants . . . are allowed to go,” id. § 36.302(c)(7). And just
as in the ADA context, where no exception applies, the
accommodation of such individuals’ use of service animals is
per se reasonable. Johnson, 116 F.3d at 1064; Alboniga, 87 F.
Supp. 3d at 1344; cf. Bronk, 54 F.3d at 429.
4. Consonant Agency Guidance
Our holding today also finds support in the regulations
and informal guidance of other agencies across the landscape
of disability law.
The DOE, which implements the RA as it applies to
educational institutions, see generally 34 C.F.R. pt. 104, has
indicated in informal guidance that the accommodation of a
disabled student’s request to be accompanied by her service
animal generally should be deemed reasonable. Specifically,
in response to an inquiry about whether barring service dogs
from a classroom violated the RA, the DOE stated—without
indicating that any additional showing of “reasonableness” was
required—that “if not allowing a student to bring a service dog
into the classroom would effectively deny the student the
opportunity . . . to participate in or benefit from the education
program,” i.e., if necessity were satisfied, “then the recipient
school would be in violation of Section 504 [of the RA] and its
implementing regulation.”12 Letter from Michael L. Williams,
12
The DOE has promulgated a general regulation
providing that federally funded schools may not deny
26
Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ., 17 Educ.
Handicapped L. Rep. 1027, 1027 (1991). In its administrative
adjudications, the DOE has taken a similar position.13
For its part, the Department of Housing and Urban
Development (HUD) has indicated that the RA may impose
even greater obligations as to service animals than its ADA
individuals with disabilities “the opportunity to participate in
or benefit from the[ir] aid, benefit, or service.” 34 C.F.R.
§ 104.4(b)(1)(i). It has also advised informally that such
schools have an obligation to make “reasonable
modifications,” which “applies under both Section 504 and
[the ADA],” and that it views the terms “reasonable
accommodation and reasonable modification
interchangeably.” U.S. Dep’t of Educ., Office for Civil Rights,
Frequently Asked Questions About the Rights of Students with
Disabilities in Public Charter Schools Under Section 504 of
the Rehabilitation Act of 1973, at 14 n.53, 19 & n.65 (2016)
(emphasis omitted), https://www2.ed.gov/about/offices/list/
ocr/docs/dcl-faq-201612-504-charter-school.pdf.
13
See, e.g., Ketchum Pub. Sch., Case No. 07-17-1250
(U.S. Dep’t of Educ. Feb. 12, 2018) (resolution agreement),
https://www2.ed.gov/about/offices/list/ocr/docs/investigations
/more/07171250-b.pdf (requiring a school district to revise its
service animal policy to comply with both statutes); Letter
from Melanie Velez, Reg’l Dir., U.S. Dep’t of Educ., Office
for Civil Rights, to Shane Barnett, Superintendent, Cullman
Cty. Sch. (Sept. 19, 2017), https://www2.ed.gov/about/
offices/list/ocr/docs/investigations/more/04171114-a.pdf
(finding that evidence of a school district’s noncompliance
with the service animal regulations was also sufficient
evidence to support a finding of noncompliance with the RA).
27
counterpart. In a notice regarding the obligations of housing
providers under the Fair Housing Act and the RA, HUD
explained that the ADA service animal regulations’ limited
definition of “service animal”14 “does not limit housing
providers’ obligations to make reasonable accommodations for
assistance animals under . . . Section 504 [of the RA].” U.S.
Dep’t of Hous. & Urban Dev., Service Animals and Assistance
Animals for People with Disabilities in Housing and HUD-
Funded Programs 1 (Apr. 25, 2013),
https://www.hud.gov/sites/documents/SERVANIMALS_NT
CFHEO2013-01.PDF. Rather, HUD explained, so long as an
individual has a “disability-related need for an assistance
animal,” “[s]ection 504 require[s] the housing provider to
modify or provide an exception to a ‘no pets’ rule or policy” in
order “to permit a person with a disability to live with and use
an assistance animal(s) in all areas of the premises where
persons are normally allowed to go, unless doing so would
impose an undue financial and administrative burden or would
fundamentally alter the nature of the housing provider’s
services.” Id. at 3.
Finally, two other agencies, in the exercise of their rule-
making authority, have interpreted the RA to require
accommodation of the use of service animals. In 2016, the
Department of Labor (DOL) promulgated a regulation
materially identical to the DOJ’s service animal regulations,
providing that a recipient of certain federal workforce
development funds “shall modify its policies, practices, or
procedures to permit the use of a service animal by an
individual with a disability” unless the animal is “out of
14
See supra note 11.
28
control” or “not housebroken.”15 29 C.F.R. § 38.16(a), (b)(1)–
(2). Likewise, a Department of Transportation (DOT)
regulation, promulgated in 2010 for “[t]he purpose of . . .
carry[ing] out the [ADA] and Section 504 of the [RA] with
respect to passenger vessels,” 49 C.F.R. § 39.1, established that
vessel owners and operators “must permit service animals to
accompany passengers with a disability . . . in all locations that
passengers can use on a vessel, including in lifeboats,” id.§ 39.91(a)–(b). Another DOT regulation similarly requires
airports to establish “relief areas for service animals that
accompany passengers” with disabilities. Id. § 27.71(h).
The relevant agencies are thus unanimous in mandating
that covered actors, as a general matter, accommodate the use
of service animals by disabled individuals under both the RA
and ADA, i.e., such an accommodation generally will be
reasonable as a matter of law. And even though
“[r]esponsibility for administering the [RA] was not delegated
to a single agency” so that Chevron deference may not be due
15
This regulation was promulgated pursuant to the
Workforce Innovation and Opportunity Act, which requires
that the DOL ensure federal funds are disbursed consistent with
various anti-discrimination statutes, including the RA. The
agency’s responses to comments in the rule-making process
also reflect its view that “[t]he final rule [requiring reasonable
modifications] creates no new obligations for recipients
regarding reasonable accommodations and modifications that
were not already required by existing laws. Accommodations
in the rule parallel those already required under the ADA and
Section 504 of the [RA], as well as those that were required
under the [previous] rules.” 81 Fed. Reg. 87,130, 87,171 (Dec.
2, 2016).
29
to all agency interpretations, it is nonetheless the case that “the
well-reasoned views of the agencies implementing [this]
statute ‘constitute a body of experience and informed judgment
to which courts and litigants may properly resort for
guidance.’” Bragdon, 524 U.S. at 642 (quoting Skidmore v.
Swift & Co., 323 U.S. 134, 139–40 (1944)).
B. The School’s Counter-Arguments
Notwithstanding the weight of this authority, the School
contends that “reasonable accommodations” under the RA
should not be interpreted consistently with the ADA service
animal regulations. We do not find its arguments persuasive.
As a threshold matter, the School does not question the
validity of the service animal regulations or dispute that they
constitute reasonable interpretations of the ADA’s prohibition
of discriminatory practices—including the failure to make
reasonable modifications—to which we accord Chevron
deference. Nor could it, because the service animal
regulations, as we have explained, see supra Section IV.A.3,
clearly “promote[] the statute’s overarching goals of ensuring
equal opportunity for, and full participation by, individuals
with disabilities,” Alboniga, 87 F. Supp. 3d at 1334; see also
Fry, 137 S. Ct. at 749 (citing to Alboniga as a case that
“requir[ed] an accommodation to permit use of a service
animal” under the ADA).
Instead, the School points out that the DOJ’s service
animal regulations technically apply only to claims for
“reasonable modifications” under the ADA. We do not
disagree: The service animal regulations do not purport to
interpret the RA per se. But, as we have explained, because
the statutes’ substantive standards of liability are identical and
30
because “reasonable accommodations” under the RA must be
interpreted consistently with “reasonable modifications” under
the ADA, see supra Section IV.A.1–2, the ADA service animal
regulations necessarily inform our interpretation of the RA.
The School also contends that, even if the service
animal regulations are otherwise applicable, the unique needs
of the education context warrant an exception to avoid
imposing “strict liability” on schools that are not equipped to
accommodate service animals. Appellee’s Br. 20. Congress,
however, has given no indication that the use of service
animals should be less accommodated in the school setting
than in other settings covered by the RA or the ADA. To the
contrary, it made a specific finding in the RA that “individuals
with disabilities continually encounter various forms of
discrimination in such critical areas as . . . education,” 29
U.S.C. § 701(a)(5), just as it did in the ADA, 42 U.S.C.
§ 12101(a)(3). It also instructed that “all programs, projects,
and activities receiving assistance . . . shall be carried out in a
manner consistent with the principles of . . . inclusion,
integration, and full participation.” 29 U.S.C. § 701(c), (c)(3)
(emphasis added). We therefore decline to depart from our
usual rule of construing anti-discrimination statutes such as the
RA to “comport[] with th[eir] broad remedial purposes,” Buck
v. Hampton Twp. Sch. Dist., 452 F.3d 256, 263 (3d Cir.
2006)—purposes that would be critically undermined if we
interpreted the RA to permit a school’s exclusion of service
animals for the very students who cannot meaningfully access
educational benefits without them.
As for strict liability, claims alleging failure to
accommodate under the RA involve the same tripartite inquiry
as those under the ADA: (1) whether the requested
accommodation is reasonable; (2) whether it is necessary; and
31
(3) whether it would fundamentally alter the nature of the
program. Compare Choate, 469 U.S. at 300–01 (RA), with
PGA Tour, 532 U.S. at 683 n.38 (ADA). The service animal
regulations inform only one of those inquiries, reasonableness,
and do not dispense with the other two. See PGA Tour, 532
U.S. at 682 (affirming that “an accommodation might be
reasonable but not necessary”); Skinner, 881 F.2d at 1192(explaining that while some “modifications may be necessary
to avoid discrimination,” more “substantial modifications are
not required by [the RA]”). Any mandate imposed by the
service animal regulations is also subject to specified
conditions and exceptions. E.g., 28 C.F.R. §§ 35.136(b)(1)–
(2), 36.302(c)(2)(i)–(ii). Applying their logic to schools under
the RA thus hardly ushers in an era of unrestrained liability.
The upshot of our analysis—including the statutory
histories, case law, and DOJ and other agency guidance—is
that, under the RA, just as under the ADA, a covered actor
ordinarily must accommodate the use of service animals by
individuals with disabilities. As a result, although as a general
matter the “reasonableness” of an accommodation under the
RA “must be decided on a case-by-case basis,” Nathanson v.
Med. Coll. of Pa., 926 F.2d 1368, 1385 (3d Cir. 1991), the
accommodation of a disabled person’s request to be
accompanied by her service animal—absent exceptional
circumstances—is per se reasonable, see Johnson, 116 F.3d at
1064; Alboniga, 87 F. Supp. 3d at 1344. And if necessity is
then also established, so is liability. See Choate, 469 U.S. at300–01; Skinner, 881 F.2d at 1192.
C. Application to This Case
We now turn to Appellants’ contention that, in view of
the RA’s requirement of a “reasonable accommodation”
32
concerning service animals, the District Court did not correctly
instruct the jury on the applicable law. The jury instructions
stated that, for a claim under the RA for failure to
accommodate, “the plaintiffs have the initial burden of proving
by a preponderance of the evidence that the requested
accommodations they seek were reasonable. That is, necessary
to avoid discrimination on the basis of disability. In other
words, the requested accommodations were necessary to
permit [M.B.] meaningful participation.” JA 1007. The jury
was further instructed that only if it found that plaintiffs had
met that burden would “the burden shift[] to [the School] to
prove by a preponderance of the evidence that the requested
accommodations were unreasonable.” JA 1008.
These instructions were flawed for two reasons. First,
they advised the jury that M.B.’s parents had the initial burden
to prove their requested accommodation was reasonable
when—in view of the service animal regulations and the fact
that no exception to the regulations’ mandate was invoked by
the School, let alone appears applicable16—their requested
16
The School did not suggest, for example, that
allowing Buddy to accompany M.B. would “fundamentally
alter the nature of the . . . program,” 28 C.F.R. § 36.302(a), or
that Buddy was “out of control” or “not housebroken,” id.§ 36.302(c)(2)(i)–(ii). Indeed, the only explanations it offered
for refusing to make that accommodation were perplexing and
evolving, including the possibility that students would find
Buddy distracting, when it would seem the prospect of their
classmate seizing without advance warning would be far more
of a distraction, and the allergies of another student, when that
student’s parents disavowed the need for Buddy’s exclusion
and that very ground—in guidance applicable to the School as
33
accommodation was reasonable as a matter of law. See supra
Section IV.A.3. Second, the instructions conflated the RA’s
requirement that the accommodation be reasonable with its
separate and distinct requirement that the accommodation be
necessary. See PGA Tour, 532 U.S. at 682; cf. Third Circuit
Model Civil Jury Instructions § 9.1.3 (Mar. 2018) (instructing
the jury, in the ADA employment discrimination context, to
make distinct findings that the defendant “was informed of the
need for an accommodation” and that “the accommodation(s)
in dispute . . . would have been reasonable”). The jury thus
was not properly instructed.
Our inquiry does not end there, however. The School
urges us to affirm on the alternative ground that the erroneous
jury instructions were harmless, that is, “that there is a ‘high
probability’ that the error did not prejudice [Appellants’]
substantive rights.” Habecker v. Clark Equip. Co., 942 F.2d
210, 216 (3d Cir. 1991) (quoting McQueeney v. Wilmington Tr.
Co., 779 F.2d 916, 924 (3d Cir. 1985)). Specifically, the
School contends there is a high probability that the jury ruled
in its favor because it could not, on this record, have made a
finding of necessity.
Having carefully reviewed the record, we cannot agree.
To the contrary, there was compelling evidence before the jury
that having Buddy accompany M.B. was indeed necessary to
provide “meaningful access to the benefit that the grantee
a “public accommodation” under the ADA—had been deemed
“not valid” as a reason for “denying access . . . to people using
service animals,” U.S. Dep’t of Justice, Civil Rights Div.,
Service Animals (July 12, 2011), https://www.ada.gov/
service_animals_2010.htm.
34
offer[ed],” Choate, 469 U.S. at 301, that is, in the education
context, to ensure “meaningful participation in educational
activities and meaningful access to educational benefits,”
Ridley Sch. Dist., 680 F.3d at 280. And while a plaintiff “may
not insist on a particular accommodation if another reasonable
accommodation was offered,” Third Circuit Model Civil Jury
Instructions § 9.1.3, such an alternative, in order to defeat
necessity and serve as a defense, also must provide that
“meaningful access,” Choate, 469 U.S. at 301.
By that measure, the alternatives offered by the School
fell woefully short. With the assistance of school staff alone
and in the absence of Buddy’s therapeutic services, M.B. was
subjected to additional safety risks, such as the onset of
seizures without prior notice, hours of lying in the principal’s
office without intervention, and significant increased anxiety
that medical providers indicated was contributing to increased
seizure activity. Ultimately, M.B. had such a gaping
educational deficit that she could not even qualify in the public
school system to repeat fifth grade, regressing instead to the
fourth. The record also indicates that the alternative of having
Buddy wear the hypo-allergenic shirt—of dubious purpose
after the allergic student’s parents advised the principal they
had arranged for allergy treatments and did not want M.B.
excluded from the School on their son’s behalf—caused Buddy
to fail to respond when M.B. had seizures. In any event, as the
DOJ has interpreted its service animal regulations, “[a]llergies
and fear of dogs are not valid reasons for denying access or
refusing service to people using service animals,” U.S. Dep’t
of Justice, Civil Rights Div., Service Animals (July 12, 2011),
https://www.ada.gov/service_animals_2010.htm, and that
guidance, like the ADA service animal regulation itself, was
35
fully applicable to the School as a “public accommodation”
under the ADA, see supra note 4.
Bearing in mind this record and the jury’s own question
seeking “specific information re: service dogs pertaining to act
#504/ADA,” JA 1998, the School has hardly shown a “high
probability” that the jury would have ruled in its favor if
properly instructed. To the contrary, it is hard pressed to show
that any reasonable jury, properly instructed, could so rule.17
We therefore will vacate and remand for the District Court to
determine whether there is any remaining genuine issue of
material fact concerning the School’s liability or whether, in
view of our holding today, trial should be limited to the matter
of damages.
Finally, we briefly address the dismissal of the PHRA
claim, which we will reverse. The District Court observed that
“the analysis of an ADA claim applies equally to a PHRA
claim,” JA 23, which is true as far as it goes, see Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). But
it then dismissed both claims on the ground that M.B.’s parents
17
We also note that where, as here, a trial judge rules
early in litigation that a rule of law applies to the facts of the
case, and that ruling shapes the course of trial and the parties’
strategy, but then the judge reverses course at the jury
instruction stage, there may be a risk of prejudice to the parties
under the law of the case doctrine. See In re Pharmacy Benefit
Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009).
We need not consider whether M.B. suffered such prejudice
here, however, because our conclusions that the jury
instructions were erroneous and that the error was not harmless
dictate our disposition.
36
could not obtain damages under the ADA. The problem is that,
while the liability standard for the PHRA and the ADA is the
same, the remedies are not: The PHRA expressly permits suits
for damages. See 43 Pa. Stat. and Cons. Stat. Ann. § 962(c)(3).
Although we nonetheless could affirm if remand would be
futile, see Caver v. City of Trenton, 420 F.3d 243, 264–65 (3d
Cir. 2005), it would not be in this case. Even aside from the
significance of the ADA service animal regulations for the
PHRA, see Taylor, 184 F.3d at 306–07 (discussing an ADA
regulation as to a PHRA claim), the PHRA in its own right
prohibits public accommodations from “deny[ing] . . . any
person due to use of a guide or support animal because of the .
. . physical handicap of the user” any of their
“accommodations, advantages, facilities or privileges,” 43 Pa.
Stat. and Cons. Stat. Ann. § 955(i)(1). It was therefore
reversible error to dismiss Appellants’ PHRA claim.
V. Conclusion
For the foregoing reasons, we will vacate the judgment
on the RA claim, reverse the dismissal of the PHRA claim, and
remand for further proceedings consistent with this opinion.
37