The 5th U.S. Circuit Court of Appeals has affirmed a lower court’s ruling that a school district in Texas did enough to accommodate a mother, who was restricted to a wheelchair, and thus avoided liability under Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act.
Specifically, the appeals court found that the district “provided sufficient program access to football games held at the stadium.”
Leslie Greer was attending her son’s junior varsity football game at Berkner B stadium, located at Berkner High School in Richardson, Texas, on October 4, 2007. After entering the stadium, which is operated by Richardson Independent School District (RISD), Greer realized that the only way to access the stadium’s bleacher seating was by climbing a flight of stairs. Unable to access the stadium’s bleachers, Greer maneuvered her wheelchair to an accessible paved area adjacent to the bleachers where she watched the football game through a chain link fence that surrounds the field while her husband watched the game from the bleachers. From her viewpoint, Greer claimed she was only able to observe roughly 15 percent of the game due to her view being blocked by football players standing on the sideline. She also claimed the area, while accessible by a wheelchair, was slightly sloped, which required her to hold on to the fence to avoid slowly rolling backwards. It was not disputed that Greer was able to access other aspects of the stadium, including being able to park at the stadium, navigate from the parking lot to the stadium, buy a ticket to the game, and buy a hot dog and beverage at the concession stand.
On February 1, 2008, Greer sued RISD, claiming that it discriminated against her by “excluding her from participation in the benefits, programs and activities of a governmental entity receiving federal assistance, in violation of Title II of the ADA, 42 U.S.C. § 12101, et seq. and the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 and 794a.” The court added that “the basis of Greer’s original complaint focused solely on her exclusion from the bleachers at Berkner B stadium.”
Both parties moved for summary judgment. The district court granted RISD’s motion for summary judgment in part on August 2, 2010, “finding that Greer failed to present a prima facie case of discrimination under Section II of the ADA. Greer v. Richardson Indep. Sch. Dist., 752 F. Supp. 2d 746, 754 (N.D. Tex. 2010),” wrote the panel of judges.
Greer appealed, arguing that the district court “improperly weighed evidence in granting summary judgment in favor of RISD and that it erred by failing to find as a matter of law that relegating disabled patrons to a non-accessible area of the stadium is discriminatory.”
In its analysis, the appeals court reviewed Title II of the ADA, which states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”1 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a). The implementation of Title II and the construction and access requirements, as it pertains to ensuring public facilities are accessible to individuals with disabilities, are articulated in the ADAAG regulations. These regulations provide the minimum technical requirements for ADA compliance for newly constructed facilities and for alterations made to existing facilities.
“When enacting the ADA, Congress acknowledged that some public entities operating then-existing buildings and structures would be unable to comply with all technical aspects of the new ADAAG regulations. Accordingly, the regulations promulgated by the United States Attorney General to implement the requirements of Title II differentiate between structures built prior to the Act taking effect in January 1992 (existing facilities) and facilities built or altered after January 1992. Tennessee v. Lane, 541 U.S. 509, 531-32, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004); 28 C.F.R. § 35.104. The accessibility requirements for existing facilities are less stringent and more flexible than for new facilities.”
The panel added that “when considering ADA compliance for such existing structures, the touchstone is thus not the facility’s technical compliance with the ADAAG, but is instead ‘program accessibility.’
“Making a program or activity accessible under this standard does not require a public entity to make all of its existing facilities accessible to disabled individuals nor does it require a public entity to take an action that would place an undue burden on the entity. Furthermore, the regulations do not provide any objective criteria for evaluating program accessibility. While an existing facility’s compliance with the ADAAG regulations may be informative, program accessibility is ultimately a subjective determination by viewing the program or activity at issue in its entirety and not solely by evaluating individual elements of the facility where the program is held.”
On this point the appeals court revisited Greer’s core argument that “’program access’ is more than just the ability to watch the football game at the Berkner B stadium. Instead program access requires that a disabled individual such as Greer not only be able to watch the game but also experience the game from the general admission public bleachers so as to not be separated from other attendees.
“There is an aspect of Greer’s segregation argument that rings true as noted by the district court during its hearing on the cross-motions for summary judgment. It would likely not be permissible for a public entity such as RISD to claim it provides program access if it required disabled individuals to sit alone in an area far removed from her companions and other attendees, such as behind the goal posts at the end of the field, when all other attendees were seated along the sidelines. Yet we need not determine where that line exists here—how far away is too far away—because, as the photos in the record show, all of the accessible seating offered by RISD is either immediately adjacent to or in front of the bleacher seating for the general public.
“However, we disagree with Greer’s suggestion that any separation from the general public seating area is ipso facto discrimination and we do not agree with Greer’s argument that she was denied program access at the Berkner B stadium. Like the district court, we note that much of Greer’s argument focuses on ‘the actual state of ADAAG compliance at the facility’ and conflates these observations about facility deviations from ADAAG standards, which are applicable to newly constructed or modified facilities, with RISD’s obligation to provide program access at an existing facility.
“In making these arguments, Greer attempts to completely nullify the ‘program access’ standard of review by asserting that, based on RISD’s admission that the bleachers are not accessible and therefore wheelchair-bound visitors to Berkner B are provided alternate seating areas, RISD must prove that modifying the stadium seating would constitute an undue financial burden in order for RISD to avoid summary judgment. This however is not an accurate interpretation of the law. As an operator of an existing facility, RISD need only show that the program offered at Berkner B, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 35.150(a).
“Thus, despite Greer’s protests that RISD’s repeated statements that it ‘is not legally obligated to provide bleacher access for a mobility-impaired individual who has designated accessible seating available in an alternate area’ are incorrect, RISD’s statement is a valid interpretation of the law. As an existing facility, RISD’s duty is to provide program access to events at Berkner B, which may be achieved without providing access to the bleachers.”
Leslie Greer v. Richardson Independent School District; 5th Cir.; No. 10-11254, 2012 U.S. App. LEXIS 5356; 3/14/12
Attorneys of record: (for plaintiff) Palmer D. Bailey, Esq., Law Office of Palmer Bailey, Addison, TX; Kenneth D. Carden, Carden Law Office, Dallas, TX. (for defendant) Bridget Ranee Robinson, Attorney, Adrienne Rene Butcher, Esq., Walsh, Anderson, Brown, Gallegos & Green, P.C., Austin, TX.
