Cochrell v. Berkeley Unified School District et al

Filing 36

ORDER RE: DECEMBER 9, 2011 HEARING ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION (Illston, Susan) (Filed on 12/6/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TERRY COCHRELL,

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United States District Court
For the Northern District of California

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No. C 11-3395 SI

Plaintiff,

ORDER RE: DECEMBER 9, 2011
HEARING ON PLAINTIFF’S MOTION
FOR A PRELIMINARY INJUNCTION

v.
BERKELEY UNIFIED SCHOOL DISTRICT, et
al.,
Defendants.

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Plaintiff’s motion for a preliminary injunction is scheduled for a hearing on December 9, 2011.
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Plaintiff seeks an injunction ordering defendants to keep the Warm Pool open until the resolution of this
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case or until defendants provide an adequate alternative to the Warm Pool. Defendants assert that
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people with disabilities will be provided programmatic access to City aquatics programs after closure
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of the indoor Warm Pool because the City will continue to operate two outdoor pools, the King Pool and
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the West Campus Pool. However, it appears based upon the record before the Court that a number of
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the City’s aquatics programs for disabled swimmers, such as the “Senior/Disabled Swim” and “Quiet
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Swim” classes, are only offered at the Warm Pool, and there is no indication in defendants’ papers that
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those programs will be available at King Pool or West Campus Pool after closure of the Warm Pool.
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One alternative proposed by plaintiff is the Berkeley YMCA, which has an indoor warm pool.
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Both defendants also cite the YMCA as an alternative, though only as a private option to plaintiff and
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other disabled people, and defendants’ papers do not address the possibility of the City working with
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the YMCA to transfer the City’s disabled swim programs to the YMCA after the Warm Pool closes.
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The Court notes that according to a document submitted by defendants, in 2008 the City of Berkeley
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contemplated working with the Berkeley YMCA “to provide therapeutic pool services for warm water

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pool users during construction of a new public warm water pool.” Zembsch Decl. Ex. B at BUSD00033.

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Accordingly, the Court directs the City of Berkeley to be prepared to address at the December

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9, 2011 hearing the feasibility of providing the City’s disabled swim programs at the Berkeley YMCA

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when the Warm Pool closes. In addition, the parties should be prepared to address (1) whether any

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disabled swim programs will be offered at King and West Campus Pools after closure of the Warm Pool;

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(2) whether there is any authority to support defendants’ assertion that the existence of private warm

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pools that are accessible to the public is a factor that should be considered by the Court in its analysis

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of plaintiff’s claims; and (3) whether there is any authority regarding plaintiff’s contention that although

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United States District Court
For the Northern District of California

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accessibility design standards do not require warm temperatures (90-92 degrees) for pools, the Court

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should nevertheless consider whether the lack of a warm water pool creates a barrier to programmatic

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access to the City’s aquatics program.

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IT IS SO ORDERED.

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Dated: December 6, 2011
SUSAN ILLSTON
United States District Judge

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