invitee

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 11^th and the 9^th 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!!!!!