Understanding the ADA

The Blog of William D. Goren, J.D. LL.M. - Of Counsel, Kitchens New Cleghorn, LLC

Ashby v. Warrick County school Corporation

Appellate Decision for Whose Program is It

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In February of this year, I blogged on the topic of what happens when it is unclear whose program is involved with respect to activities of a place of education. It’s a question that comes up from time to time and is very complicated. For those representing educational institutions, it is an important one. On November 5, 2018, the Seventh Circuit affirmed that decision, and I thought it makes sense to go over the Seventh Circuit decision. Since we have already covered the facts in the prior blog entry, there is no reason to go into detail here as to what the facts are. So, the categories for this blog entry are court’s reasoning and takeaways. Due to that configuration, the reader is probably going to want to read the whole thing.

I

In affirming the District Court decision on behalf of the school, the Seventh Circuit reasoned as follows:

  1. The Department of Justice filed an amicus brief in the case at the invitation of the court.
  2. Title II of the ADA does not define explicitly, “services, program, or activity.”
  3. The final implementing regulations at 28 C.F.R. §35.102, state that the term applies, “to all services, program, and activities provided or made available by public entities.”
  4. The preamble to the final rule published as an appendix to the rule describes the statute as applying to, “anything a public entity does.”
  5. The limited case law interpreting the statutory term simply emphasizes the breadth of the ADA and of the phrase itself.
  6. Under 28 C.F.R. §35.130(b)(4), a governmental entity cannot avoid its obligations under the ADA by ceding its governmental function to private entities.
  7. The mandate of title II is clear so that whenever a public entity or federal funding recipient does anything, it has to extend the benefits of and cannot discriminate in that thing on the basis of disability.
  8. The question whether a particular event is a service, program, or activity of a public entity turns on what the public entity itself is doing, providing, or making available.
  9. Both the parties and the Department of Justice acknowledged that the regulations specifically contemplate that liability may attach to some complicated relationships between public and private actors. For example, 28 C.F.R. §35.130(b) prohibits a public entity from discriminating on the basis of disability, directly or indirectly, such as through contractual, licensing, or other arrangements.
  10. The Department of Justice in its amicus brief said that if there is a true joint endeavor, then both the public and private entity are responsible for complying with the ADA and/or §504 of the Rehabilitation Act with respect to the entire event.
  11. The Department of Justice in its amicus brief said that where the public entity does not engage in a joint endeavor with the private entity, but instead participates in the event of the private entity, then the liability of the public entity is limited to its own program within the event, but does not extend to the entire event. Whether it is a true joint endeavor or a situation where a public entity is simply participating in the event of a private entity is a continuum. Lots of situations will fall between the two extremes.
  12. Considering the record, this case falls closer to the public entity simply participating than it does to a true joint endeavor because: 1) the event was part of the museum’s own programming for the people of the community with the hope that those in attendance would be more supportive of the museum’s endeavors; 2) the students who sang at the event and the teachers who accompany them were simply the invitees of the museum; 3) the responsibility of the school upon acceptance of the invitation was limited to arranging for the attendance of the students and for the presentation of the musical program for the audience; and 4) the planning, community notification, and refreshments for the audience were handled by the museum as the sponsor and host of the event.
  13. Even looking at the record in a way most charitably for the plaintiff, it simply cannot be said that the school’s participation was in any way a substitution for an event that otherwise would have been held at the school as part of its own observance of the holiday season.
  14. Any benefits to the students of the school or to the school’s students parents were purely collateral to the objectives of the museum and must be considered in that context.
  15. The inquiry into whether a particular program involving private entities not subject to the statute and public entities subject to title II of the ADA is a service, program or activity of the public entity is a fact intensive issue.

II

Takeaways

  1. Over the years, I have noticed that the Seventh Circuit has evolved when it comes to persons with disabilities. At present, the Seventh Circuit seems to be less pro-disability than it has in the past. Certainly, other Circuits, such as the 11th and the 9th for example, are much more pro-disability in their decisions.
  2. The Seventh Circuit decision is quite broad in its analysis. That is, it doesn’t give the attorney a lot of specific guidelines as to how go about figuring out whose program is it. I don’t find thinking of whose program is it on a continuum very helpful for specific factual situations. For that, what the District Court had to say is useful, and since that decision was affirmed on appeal, remains good law. Of course, before you can figure out whose program it is, you have to figure out first what programs are involved. For that, the reader will want to take a look at this blog entry.
  3. With respect to appealing the case to the United States Supreme Court, I am not aware of any split in the Circuits. However, this particular area is so complicated and so fact intensive, that down the road I could see a split developing in the Circuits. So, the Supreme Court may wait for the split to occur before taking this kind of case.
  4. The case makes pretty clear that a public entity pawning off its obligations onto a private entity that discriminates on the basis of disability is not going to fly. On that score, the reader may want to look at this blog entry and this blog entry discussing the nondelegable/delegable duty of ADA compliance.
  5. For specific guidance outside of the general statement contained in this opinion, I would refer to this blog entry for trying to figure out just whose program is it.
  6. The statement from the opinion that reads: “the record, even charitably read for Ms. Ashby[plaintiff], did not support the conclusion that the school’s participation was in any way a substitution for an event that otherwise would have been held at the school as part of its own observance of the holiday season,” will be a boon for any defendant arguing that it wasn’t their program as this statement, if it becomes the standard, basically says anything short of a joint venture is not going to impose ADA liability. Such a reading doesn’t make sense in light of the way the rest the decision reads, but nevertheless look for defense lawyers to exploit this. Such a standard is also likely not to be followed by all Circuits, and thereby lead to the Circuit split.
  7. That the court recognizes the fact intensive nature of figuring out just whose program it is, presents plaintiffs with an opportunity to argue against motions for summary judgment filed by defendants.

Finally, my blog was nominated in the expert category for a best blog by the expert institute. Thanks to all who nominated me. You now have a chance to vote here for it to be a best blog. Regarding the ABA 100 for this year, I should be finding out soon, since the notification always happens around thanksgiving.

Have a great thanksgiving everyone!!!!!

What’s a Program and Whose Program Is It?

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Today’s blog entry is a two-for-one. First, we are going to update several other blog entries with recent developments. Then, we have the case of the week, Ashby v. Warrick County School Corporation, a decision from the United States District Court for the Southern District of Indiana that came down on February 7, 2018. My thanks to my colleague Richard Hunt who alerted me to that case in a blog entry of his, which can be found here. As usual, our blog entry can be divided into categories and they are: Hamer update; EEOC v. Ford and the Sixth Circuit; Endrew update; what is a program; Ashby facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Hamer Update

In this blog entry, we discussed the case of Hamer v. City of Trinidad. In that case, the U.S. District Court of Colorado held, among other things, that the statute of limitations begins to run at the moment a person discovers the problem regardless of whether the problem is ever fixed. That case has been appealed. A partner from the firm representing the plaintiff was kind enough to send me their brief appealing the decision. Basically, the brief says that every time a person encounters a barrier in violation of the ADA, the statute of limitations begins to run at that time. So, each and every time a barrier in violation of the ADA is encountered, a separate cause of action ensues because the ADA imposes a continuing duty to comply with that law. That argument is very similar to Keith-Foust v. North Carolina Central University, which we discussed here. What is not addressed in that brief because it was not an issue there, is whether the statute of limitations period stops if the problem is not fixed i.e. the person is not engaged in continually discovering the violation; a situation that has come up in my practice.

II

EEOC v. Ford and the Sixth Circuit

In this blog entry, we discussed the en banc decision from the Sixth Circuit discussing telecommuting and whether it is a reasonable accommodation. Recently, the Sixth Circuit came down with another decision on that topic. As I have mentioned before, many times I blog on what other bloggers have blogged about. However, there are times when the blogger that gets to the case first does such a good job that I don’t see what I can add. This blog entry of Jon Hyman of Meyers Roman is one of those times, and I strongly commend his blog entry, which can be found here, to your reading. It is an excellent analysis with great preventive steps as well.

III

Endrew Update

In this blog entry, we discussed the Supreme Court opinion imposing a much higher standard than what many courts said existed with respect to how far a school had to go to comply with its obligation under IDEA. After the Supreme Court decided the case, it was sent back to the 10th Circuit. In the 10th Circuit, they remanded it to the District Court for further proceedings consistent with the Supreme Court decision. The District Court then got a chance to decide whether the parents were entitled to reimbursement from the school district for their private school placement. The District Court decided that since it was a close call to begin with under the de minimis standard as to whether the parents were entitled to reimbursement for the private school placement, the parents were necessarily entitled to reimbursement now because the Supreme Court created a much higher standard in its decision. Therefore, the school district basically lost automatically because they almost lost on a much lower standard.

IV

What’s a Program?

When it comes to title II of the ADA, program accessibility is a critical concept. You can find a discussion of program accessibility and why it is critical to know a program’s essential requirements in my book on pages 77-78, 80-82. To reiterate the discussion there, an entity subject to title II of the ADA does not have to make an accommodation if it will fundamentally alter the nature of the program. Further, under title II of the ADA, a facility built before January 26, 1992, does not have to be accessible but the program does. Of course, a facility built or altered after the effective date of the ADA does have to be readily accessible to persons with disabilities and built in accordance with the appropriate architectural guidelines. When thinking about what is a program consider the following:

  1. Review the self-evaluation plan. If the entity is a public entity, they should have completed a self-evaluation plan some 24 years ago.
  2. Consider the commonalities in the delivery of the program’s service as programs are often built around a common set of services to a defined set of customers/clientele.
  3. Consider the meaning of the term program to the people running that program since what the program is may be obvious to them.
  4. Consult competent legal counsel to help determine what constitutes a program.
  5. Once you know what the program is, figure out its essential eligibility requirements using perhaps the approach we discussed in this blog entry

V

Ashby Facts (material in quotes taken directly from opinion)

“On December 16, 2014, Mycal L. Ashby showed up to the Warrick County Museum located in Boonville, Indiana to attend a Christmas program in which the Loge Elementary School choir was performing. Ms. Ashby’s son participated in the choir. However, Ms. Ashby, who is confined to a wheelchair due to a disability, was not able to enter the Museum because it was not fully accessible to persons with disabilities. As a result, she did not see her son perform that night. To make matters worse, this scenario occurred the following year in substantially similar circumstances. In December of 2015, Ms. Ashby showed up to the Museum, was informed that it was still not accessible, and was likewise unable to see her son perform in the Christmas program. Since then, the Museum has installed and maintains a fully operational elevator.”

“During the 2014-2015 and 2015-2016 school years, Ms. Ashby’s son participated in the Loge Elementary School choir (the “Choir”). (Id. ¶ 10). The Choir was an extra-curricular activity that was open to students in the fourth and fifth grade and was held after regular school hours. (Id. ¶¶ 10-12); (Filing No. 41-1, Affidavit of Abby Roach [“Roach Aff.”] at 1, ¶ 3). The program was led by Abby Roach, who was employed as a music teacher for Loge Elementary School. (Roach Aff. at 1, ¶¶ 2, 3). Roach was not paid for the time spent leading the choir as it was not a part of her regular teaching duties. (Id. ¶ 3). Once a week, students would practice and rehearse after school. (Ashby Dec. at 2, ¶ 12). Participation in the Choir was strictly voluntary as there were no attendance or performance requirements. (Roach Aff. at 2, ¶ 5). No class credit was offered for participation, and students were not evaluated for skill. (Id.).”

“Though Roach declared that the purpose of the choir was to acquaint students with singing in an informal environment and not to perform for others, the choir indeed performed at a number of events during the school year. (Ashby Dec. at 2, ¶ 13); (Roach Aff. at 1, ¶ 4). The events included a Fine Arts Night performance and a Veteran’s Day program, both of which were held at the elementary school. (Roach Aff. at 2, ¶ 6). Ms. Ashby attended the Veteran’s Day program in 2014. (Ashby Dec. at 2, ¶ 13).”

Other facts include:

  1. The museum is owned and operated by the Warrick County Museum Corporation;
  2. Museum is not in any way affiliated with Warrick Schools, and the museum did not have an operational elevator in the building until September 2016.
  3. The Museum has invited schools to perform at the Museum during the winter holidays since 2010.
  4. The events are organized, advertised, and operated solely by the Museum. At these events, the museum solicits donations, none of which are shared with or paid to Warrick Schools.
  5. The schools invited do not pay a rental fee to utilize the facility, and the museum opened the events up to the public at large.
  6. Transportation to the event was not provided by Warrick Schools.

The actual facts are really quite egregious in terms of what the child’s parents had to go through only to be denied access to the museum, but are not included here because they were not germane to the decision.

VI

Court’s Reasoning

In granting the school’s motion for summary judgment, the court reasoned as follows:

  1. Whether a service, program or activity of the schools was involved is a question of law.
  2. The terms “service, program, or activity,” are not defined in the ADA, though courts have interpreted that phrase to mean anything that a public entity does or to borrow from the Rehabilitation Act, i.e. all operations of the public entity.
  3. Regulations provide that a service, program, or activity is of a particular entity when it is provided or made available by the public entity. There are actually few decisions talking about when a service, program, or activity is provided or made available.
  4. One decision from the Northern District of Indiana talks about whether the city had control and authority over the problem at issue. Another decision from the District of New Jersey talks about where a governmental entity coordinates, schedules, and conducts proceedings on its own premises to benefit the public, then that conduct is necessarily a service to the public. Finally, the Southern District of Indiana in a case which we have discussed in the blog, here, said the key was who had the authority to direct or oversee the decision to comply with the ADA.
  5. Museum is not affiliated in any way with Warrick Schools.
  6. Warrick Schools does not own, operate, maintain, or control the building where the museum is located.
  7. Museum was responsible for coordinating, scheduling, and inviting local schools to the Christmas program and not the school.
  8. The Christmas program was operated solely by the Museum for the benefit of the community, and other than choosing what songs to sing, Warrick Schools did not organize or oversee the program.
  9. Donations were solicited on behalf of the museum, and no funds were shared with the schools.
  10. No rental fee was charged by the museum.
  11. The purpose of the Christmas program was to benefit and raise funds for the museum.
  12. While the choir is an extracurricular activity, the performance was under the direction of a school employee, and the Christmas program was advertised to parents in the school calendar, the choir was nonmandatory nor otherwise a required part of the school curriculum. Further, the employee was not compensated for her time leading the choir and there were no performance requirements nor were the student’s graded or evaluated.
  13. The school did not provide transportation to the museum. Just because the school accepted the invitation and the choir performed at the direction of the school employee after the program had been advertised to the parents on the school calendar, does not transform the program-which was otherwise wholly conceived of, planned, and controlled by the museum-into a service, program, or activity of the schools so that it had responsibility under the ADA.
  14. In a footnote, the court said that while title II of the ADA applies to anything a public entity does, it simply goes too far to conclude that these events are a service, program, or activity of each attending school.
  15. The school did not organize, coordinate, and plan the Christmas program as a requirement to complement its music curriculum.
  16. No allegations existed that the choir intentionally selected an inaccessible location where the choir performs.
  17. In another footnote, the court said plaintiff did not allege that the Warrick Schools engaged in any pattern of planning programs and inaccessible locations or that the choir did not accommodate members after school and practices. Further, while it is true that a public entity may not in determining the site or location of the facility make selections that are discriminatory, that presumes the public entity is selecting a facility for its own service, program, or activity, which is not the case here.

VII

Takeaways:

  1. The court specifically says, “to be fair, this is a close case.”
  2. Could the plaintiff have gone after the schools under 28 C.F.R. § 35.130(b)? True, no money exchanged hands, but to have a contract, money does not have to be involved. For a contract to exist, the critical feature is whether a bargained for exchange exists (the offer and acceptance already occurred). The school’s students are certainly getting a benefit to their education by performing at this concert and the museum is certainly receiving a benefit from the school i.e. providing the vehicle for it to raise funds. So, an argument exists that the court unduly focused on the monetary aspect of most contracts, but a contract doesn’t have to be monetary; all you need is a bargained for exchange.
  3. It will be interesting to see whether this case gets appealed. I will say that the Seventh Circuit of late has not been great with respect to deciding in favor of persons with disabilities (for example, see this recent blog entry), but you never know. Also, Judge Young admitted that it was a close case.
  4. I suppose the reason they didn’t go after the museum was because of the museum was not the deep pocket.
  5. While the choir director was not compensated for directing the choir, the question remains in my mind whether the school expected the choir director to be engaged in extracurricular activities. Such an expectation would not be unusual at all.
  6. As a preventive law matter, I wouldn’t rely on this case because of the myriad of factors that all broke towards the museum. In another situation, the factors may split more evenly. See also ¶VII2 above. Further, since it was a close case, even if all the factors broke the same way, a different judge may come to the opposite conclusion. So, bottom line, if the school district is doing something under the school district’s direction, it would be a good idea to make sure that anyplace it performs is accessible. Engaging in that endeavor, is certainly much cheaper than fighting off a motion for summary judgment.