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. at

300–01; 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.

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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.

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