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Judge: Service dog stance not entirely clear

BY CARL MACGOWAN | carl.macgowan@newsday.com

February 13, 2007

After a court hearing marked by opposing lawyers' name-calling and sarcasm, a federal judge Monday said he needs more time to decide whether a deaf student's service dog must be allowed into a Westbury high school.

At a two-hour hearing in U.S. District Court in Central Islip, the attorney for the East Meadow School District said John Cave Jr.'s intended use of the dog was "a detriment to the child" and called John and Nancy Cave, the ninth-grader's parents, "press hogs."

School-district attorney Steven Schlesinger told Judge Arthur D. Spatt that other students at W. Tresper Clarke High School in Westbury might use spitballs or high-pitched whistles to distract Simba, a 2-year-old Labrador retriever. "It will take no time at all for the other kids to figure out how to drive the dog crazy," Schlesinger said.

Paul Margiotta, the attorney for the Caves and their son, 14, said the federal Americans with Disabilities Act requires the district to allow Simba in the school.

Margiotta noted that the dog is trained to ignore distractions. He turned sarcastic as he refuted Schlesinger's charges.

"What I hear is the obnoxiousness of a school district that thinks they know what's best for the child," Margiotta said in a mocking tone. "What the district is asking you to do is ignore the law and the legislature because they don't like it."

The Caves were seeking an injunction from Spatt ordering the district to let John bring Simba to school. The Caves filed the federal lawsuit against the district last week, seeking $150 million in damages. They also have filed a notice of claim in State Supreme Court in Nassau County.

The Caves have argued in the months-long dispute that John, who can hear only with cochlear implants, needs the service dog for his safety and because Simba's effectiveness as a service dog is impaired if their son spends too much time away from him. The district says John does well in school without the dog and contends that Simba would be a health and safety hazard to other students and staff.

Spatt was skeptical of arguments on both sides, at one point questioning Schlesinger's claim that students may be allergic to Simba. "People have allergies to pets?" Spatt said.

Spatt ordered the two sides back to court Wednesday.

"This is a not entirely clear situation," the judge said.