The opinion of the court was delivered by: James, United States Magistrate Judge.
ORDER GRANTING, IN PART, PLAINTIFFS'
MOTION FOR PRELIMINARY
Pending before this Court is Plaintiffs' Motion for a Preliminary
Injunction, filed on April 7, 1999. On May 13, 1999, this matter was
heard on the Court's calendar, at which time oral argument was presented
by the parties' counsel and by Ryan E. Warren, trial attorney for the
Civil Rights Division of the United States Department of Justice as
amicus curiae in this case. After careful consideration of the written
briefs, oral argument, and evidence submitted by the parties, and Good
Cause Appearing, the Court grants, in part, Plaintiffs' Motion for a
This action was filed by the parents of Jeremy Alvarez, a four-year old
child with an asthma condition, on his behalf and on the basis of their
own claims, against Fountainhead, Inc., the owner and operator of
Fountainhead Montessori Schools, a private school program with branches
in Orinda, Moraga, Danville, Pleasant Hill, and Dublin, California.
Plaintiffs desired that Jeremy attend the Fountainhead Montessori
preschool in Dublin. Jeremy's name was placed on a waiting list at the
Dublin school, and in November of 1998, Fountainhead notified Jeremy's
parents that a space would be available for him as of January 4, 1999.
Plaintiffs allege that they were then informed that Fountainhead has a
"no medications" policy that does not allow Jeremy to bring his hand-held
Albuterol asthma inhaler to preschool. Plaintiffs contend that
Fountainhead's failure to modify their "no medications" policy
constitutes a violation of Title III of the ADA and state law.
On April 7, 1999, Plaintiffs filed the instant motion for a preliminary
injunction, arguing that because of Fountainhead's "no medications"
policy, Jeremy is currently losing the opportunity to attend preschool
where he can learn and play with children his own age. Plaintiffs seek a
preliminary injunction directing Fountainhead to: (1) rescind the "no
medications" policy in every form at all five of its schools; (2) within
one week, have its staff who will supervise Jeremy participate in a free
training lasting less than one hour on asthma and the use of inhalers;
and (3) allow Jeremy to enroll at Fountainhead with his inhaler from 9:00
am to 2:00 pm on Mondays, Tuesdays, and Fridays immediately after the
training is completed.
To obtain a preliminary injunction, Plaintiffs must demonstrate
either: (1) a combination of probable success on the merits and the
possibility of irreparable injury, or (2) that serious questions of law
are raised and the balance of hardships tips sharply in plaintiffs
favor. Cadence Design Sys. v. Avant! Corp., 125 F.3d 824, 826 (9th
Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 1795, 140 L.Ed.2d
936 (1998). These two standards form a sliding scale, in which the
"critical element in determining the test to be applied is the
relative hardship to the parties." Half Moon Bay Fishermans' Mktg.
Ass'n. v. Carlucci, 857 F.2d 505, 507 (9th Cir. 1988). The Court also
considers the public interest in ruling on a motion for preliminary
injunction. See Chalk v. United States Dist. Court Cent. Dist.,
840 F.2d 701, 711 (9th Cir. 1988).
I. Possibility of Irreparable Injury
Plaintiffs contend that a preliminary injunction is necessary
because by the time this action is decided on the merits, Jeremy will be
old enough for kindergarten and will have lost his opportunity to attend
preschool. At oral argument, Plaintiffs indicated that Jeremy will start
kindergarten this Fall, leaving him with only a few more months in which
to attend preschool. Plaintiffs argue that by refusing to accommodate
Jeremy, Fountainhead is depriving Jeremy of the opportunity to get a head
start on his education, and learn and play with other children his same
age. In support of their motion, plaintiffs submit a report of the State
Superintendent's Universal Task Force that outlines the social and
academic benefits of preschool to three-and four-year olds such as
Jeremy. (Plfs.' Ex. T to Overson Declaration). Plaintiffs further explain
that it would be difficult, if not impossible, to place Jeremy in another
preschool immediately, due to a number of factors, including the fact that
many preschools have waiting lists for admission. Fountainhead does not
appear to dispute that Jeremy will suffer irreparable injury if he cannot
attend Fountainhead preschool. The Court finds that Plaintiffs have
demonstrated the possibility that Jeremy faces an immediate and
irreparable harm in being prevented from attending the Fountainhead
preschool with his inhaler.
II. Probability of Success on the Merits
Title III of the ADA prohibits a place of public accommodation from
discriminating against an individual on the basis of disability.
42 U.S.C. § 12182(a). For purposes of Title III, "disability means
with respect to an individual, a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual." 28 C.F.R. § 36.104. In the instant case, the parties
agree that Plaintiff Jeremy Alvarez, who suffers from asthma, is a
"person with a disability" and is entitled to the protections of Title III
of the ADA. The parties further agree that the Fountainhead Montessori
School is a "public accommodation" covered under Title III of the ADA, as
the statute explicitly lists child care centers as covered public
accommodations. 42 U.S.C. § 12181(7)(k).
Discrimination is defined under Title III to include a denial of the
opportunity to participate in or benefit from a public accommodation's
goods and services. 42 U.S.C. § 12182(b)(1)(A)(i). Title III requires
a place of public accommodation to make reasonable modifications to its
policies, practices, and procedures where necessary to ensure full and
equal enjoyment of its services by individuals with disabilities.
42 U.S.C. § 12182(b)(2)(A)(ii). However, the reasonable modifications
requirement is subject to the following limitations: First, modifications
are not required where they would "fundamentally alter" the nature of the
public accommodation's goods and services.
42 U.S.C. § 12182(b)(2)(A)(ii). Second, modifications are not
required if the entity can demonstrate that taking such steps would
result in an undue burden. 42 U.S.C. § 12182(b)(2)(A)(iii).
Significant difficulty or expense in making an accommodation constitutes
an undue burden. 28 C.F.R. § 36.104. Third, modifications are not
required if doing so would pose a "direct threat" to the health or safety
of others. 42 U.S.C. § 12182(b)(3).