Timothy Daubert v. Lindsay Unified School Distric

Filing

FILED OPINION (M. MARGARET MCKEOWN, MILAN D. SMITH, JR. and SUSAN R. BOLTON) AFFIRMED; Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. [9181379]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TIMOTHY S. DAUBERT,
Plaintiff-Appellant,
v.
LINDSAY UNIFIED SCHOOL DISTRICT,
Defendant-Appellee.

No. 12-16252
D.C. No.
1:09-cv-01463GSA
OPINION

Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Argued and Submitted
May 15, 2014—San Francisco, California
Filed July 25, 2014
Before: M. Margaret McKeown and Milan D. Smith, Jr.,
Circuit Judges, and Susan R. Bolton, District Judge.*
Opinion by Judge Milan D. Smith, Jr.

*

The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.

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DAUBERT V. LINDSAY USD
SUMMARY**

Americans with Disabilities Act
Affirming the district court’s grant of summary judgment
to the Lindsay Unified School District, the panel held that
Title II of the Americans with Disabilities Act does not
require a public entity to structurally alter public seating at a
high school football field, where the seating was constructed
prior to the ADA’s enactment, and the school district
provides program access to individuals who use wheelchairs.

COUNSEL
Russell Handy (argued), Center for Disability Access, San
Diego, California, for Plaintiff-Appellant.
Michael J. Maurer (argued), McCormick Kabot Jenner &
Lew, Visalia, California, for Defendant-Appellee.

OPINION
M. SMITH, Circuit Judge:
In this appeal, we consider whether Title II of the
Americans with Disabilities Act, 42 U.S.C. §§ 12131–12165
(ADA), requires a public entity to structurally alter public

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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seating at a high school football field, where the seating was
constructed prior to the ADA’s enactment, and the school
district provides program access to individuals who use
wheelchairs. We conclude that Title II imposes no such
burden, and we therefore affirm the district court’s grant of
summary judgment to Defendant-Appellee Lindsay Unified
School District (School District).
FACTUAL AND PROCEDURAL BACKGROUND
Lindsay, California is a small town located in the VisaliaPorterville Metropolitan area. The town has a total area of 2.6
miles and a population of under 12,000. Approximately 1,100
students attend Lindsay High School.
Lindsay High School has a football field that is typical of
those found at many small high schools. It consists of a turf
field surrounded by a chain link fence. Beyond the fence lies
a single set of metal bleachers on the south side of the field.
The bleachers are small, spanning from one thirty-yard line
to the other, and they are surrounded by pavement on all
sides. The field does not offer any other public seating.
The bleachers at the Lindsay High School football field
were constructed in 1971, and have never been reconstructed
or altered. The bleachers are not wheelchair accessible. They
are only accessible by stairs, and there is no clear floor space
within the bleachers where a wheelchair may rest.
While the south-side bleachers are not wheelchair
accessible, the School District designates three specific
locations from which persons who use wheelchairs are able

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to watch football games.1 The School District also permits
spectators who use wheelchairs to sit on the north and south
sides of the field, on the paved area, at any point along the
fence.
Spectators who use wheelchairs regularly attend Lindsay
High School football games. According to both parties, such
spectators are able to attend games with companions, and
enjoy unobstructed views from the following locations: (1) in
front of the south-side bleachers between the thirty and fortyyard lines; (2) the southwest corner of the field, and (3) the
end zone on the east side of the field. The parties also agree
that the end zone on the east side of the field is near a
concession stand, and that spectators tend to congregate in
this area to watch games.
Plaintiff-Appellant Timothy Daubert is disabled, and uses
a wheelchair for mobility. Daubert periodically attended
football games at the Lindsay High School football field
between 1997 and 2005. Daubert contends that he “could not
fully enjoy” the games because he “had an inferior view of
the field and had to deal with either looking through a gate,
or folks periodically walking in front of [him], or players and
coaches standing on the sidelines obscuring [his] view of the
play.” The School District has not altered its wheelchairaccessible seating since Daubert last attended a football

1

The School District specifically designates the following locations for
persons who use wheelchairs to watch football games: “(1) behind either
endzone [sic] on either the grass or the pave[ment]; (2) near the corner of
the field, in any corner; [and] (3) along the [north or south] sideline, near
the fence separating the turf and the pave[ment], at approximately either
[twenty-five-]yard line.”

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game, and Daubert does not currently attend football games
at the Lindsay High School football field for this reason.
Despite Daubert’s allegations, he concedes that he has not
taken advantage of the wheelchair-accessible seating areas
from which other spectators using wheelchairs enjoy
unobstructed views. Nonetheless, Daubert argues that these
wheelchair-accessible areas are “not satisfactory,” because:
(1) “[they do not] compare[] in quality and convenience [to]
the elevated stadium-style seating,” and (2) Daubert would
like to sit with other fans.
On August 20, 2009, Daubert initiated this action in the
United States District Court for the Eastern District of
California, alleging that the School District is in violation of
Title II of the ADA because the bleachers at the Lindsay High
School football field are not wheelchair accessible. Following
discovery, the district court granted summary judgment to the
School District. In so doing, the district court held that:
(1) because the bleachers were constructed in 1971, they
constitute an existing facility under the ADA, and therefore
the School District need not provide wheelchair access to the
bleachers so long as it provides access to “programs and
services” at the football field; and (2) the School District
provides Daubert with program access to football games.
Daubert timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
a district court’s decision to grant summary judgment de
novo. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007).

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DISCUSSION

I. Legal Standard
The ADA, signed into law on July 26, 1990, aims “to
provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities.” 42 U.S.C. § 12101(b)(1). The ADA includes
three separate titles relating to discrimination. Title II
regulates state and local governments operating public
services or programs.
Under Title II of the ADA, a “qualified individual with a
disability” cannot, “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.” Id. § 12132.
To make out a prima facie case under Title II of the ADA,
a plaintiff must show that: “(1) [he] is an individual with a
disability; (2) [he] is otherwise qualified to participate in or
receive the benefit of a public entity’s services, programs, or
activities; (3) [he] was either excluded from participation in
or denied the benefits of the public entity’s services,
programs or activities or was otherwise discriminated against
by the public entity; and (4) such exclusion, denial of benefits
or discrimination was by reason of [his] disability.” Sheehan
v. City & Cnty. of S.F., 743 F.3d 1211, 1232 (9th Cir. 2014).
An individual is excluded from participation in or denied the
benefits of a public program if “a public entity’s facilities are
inaccessible to or unusable by individuals with disabilities.”
28 C.F.R. § 35.149.

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In defining accessibility, Title II’s implementing
regulations distinguish between newly constructed or altered
facilities, which are covered by 28 C.F.R. § 35.151, and
existing facilities, which are covered by 28 C.F.R. § 35.150.
A. New Construction and Alterations
Section 35.151(a)(1) provides: “Each facility or part of a
facility constructed by, on behalf of, or for the use of a public
entity shall be designed and constructed in such manner that
the facility or part of the facility is readily accessible to and
usable by individuals with disabilities, if the construction was
commenced after January 26, 1992.” 28 C.F.R.
§ 35.151(a)(1) (emphasis added). To be “readily accessible,”
any part of a newly constructed or altered facility must be
constructed in conformance with the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG), 28 C.F.R. Pt. 36, App. A, or with the
Uniform Federal Accessibility Standards (UFAS), 41 C.F.R.
Pt. 101–19.6, App. A. See 28 C.F.R. § 35.151 (c)(1)–(3).2 The
ADAAG is a comprehensive set of structural guidelines that
articulates detailed design requirements to accommodate
persons with disabilities. See 28 C.F.R. Pt. 36, App. A.
Among other requirements, the ADAAG mandates that

2

“If physical construction or alterations commence[d] after July 26,
1992, but prior to September 15, 2010, then new construction and
alterations . . . must comply with either UFAS or the 1991 [ADAAG] . . . .
If physical construction or alterations commence[d] on or after September
15, 2010 and before March 15, 2012, then new construction and
alterations . . . may comply with . . . [t]he 2010 [ADAAG], UFAS, or the
1991 [ADAAG] . . . . If physical construction or alterations commence[d]
on or after March 15, 2012, then new construction and alterations . . . shall
comply with the 2010 [ADAAG].” 28 C.F.R. § 35.151 (c)(1)–(3).

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wheelchair seating be included as “an integral part of any
fixed seating plan.” 28 C.F.R. Pt. 36, App. B.
B. Existing Facilities
In contrast to newly constructed or altered facilities, a
public entity’s existing facilities—those facilities constructed
prior to January 26, 1992— need not be “accessible to and
usable by individuals with disabilities.” 28 C.F.R.
§ 35.150(a)(1). Rather, with respect to existing facilities, a
public entity need only provide program access, by
“operat[ing] each service, program, or activity so that the
service, program, or activity, when viewed in its entirety, is
readily accessible to and usable by individuals with
disabilities.” Id. § 35.150(a).
The applicable regulations provide a number of methods
through which a public entity may achieve program access,
including “any . . . methods that result in making its services,
programs, or activities readily accessible to and usable by
individuals with disabilities.” Id. § 35.150(b)(1). “In choosing
among available methods for [achieving program access], a
public entity shall give priority to those methods that offer
services, programs, and activities to qualified individuals with
disabilities in the most integrated setting appropriate.” Id.
“Title II’s emphasis on ‘program accessibility’ rather than
‘facilities accessibility’ was intended to ensure broad access
to public services, while, at the same time, providing public
entities with the flexibility to choose how best to make access
available.” Parker v. Universidad de Puerto Rico, 225 F.3d
1, 6 (1st Cir. 2000). For this reason, the regulations
emphasize that “[a] public entity is not required to make
structural changes in existing facilities where other methods

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are effective in achieving compliance.” 28 C.F.R.
§ 35.150(b)(1). The Supreme Court has further instructed
that, “[i]n the case of older facilities, for which structural
change is likely to be more difficult, a public entity may
comply with Title II by adopting a variety of less costly
measures . . . [and] [o]nly if these measures are ineffective in
achieving accessibility is the public entity required to make
reasonable structural changes.” Tennessee v. Lane, 541 U.S.
509, 532 (2004).
II. Daubert’s Claim
Daubert argues that the School District excludes him from
a “public program,” because (1) the bleachers at the Lindsay
High School football field are not accessible to individuals
who use wheelchairs; and (2) the seating that is available to
individuals who use wheelchairs is not ADAAG compliant.
These arguments misconstrue the regulatory scheme, and
therefore fail to establish that the School District excludes
Daubert in violation of Title II.
A. Bleacher Accessibility
It is undisputed that the bleachers at the Lindsay High
School football field are not wheelchair accessible. However,
because the bleachers were constructed in 1971, they are an
existing facility under the applicable regulations. 28 C.F.R.
§ 35.150. Accordingly, the fact that the bleachers are not
accessible does not amount to exclusion under Title II so long
as the School District provides program access to programs
at the football field—in this case, football games. See id.
§ 35.150(a).

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Daubert argues that, under the facts of this case, program
access not only requires access to football games, but also
includes access to the south-side bleachers. According to
Daubert, the “social experience” of sitting in the bleachers
with other Lindsay High School fans constitutes a distinct
public program, to which he has a right of access. We
disagree.
As discussed above, Title II’s implementing regulations
clearly distinguish facilities from programs. Under section
35.150, a public entity need not make each of its existing
facilities “accessible to and usable by individuals with
disabilities.” Id. § 35.150(a)(1); see also id. § 35.150(b)(1)
(“A public entity is not required to make structural changes
in existing facilities . . . .” (emphasis added)). A public entity
must, however, “operate each . . . program . . . [so that it] is
readily accessible to and usable by individuals with
disabilities.” Id. § 35.150(a) (emphasis added).
We have explained that whether a public function
constitutes a public program under Title II turns “not so much
on whether a particular public function can technically be
characterized as a service, program, or activity, but [on]
whether it is a normal function of a governmental entity.”
Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.
2002) (internal citations and quotation marks omitted). A
normal function of a government entity is “anything a public
entity does,” such as maintaining city sidewalks, zoning, and
issuing certain licenses. Id. (emphasis added). But those
experiences that are merely incidental to normal government
functions are not fairly characterized as government programs
under 28 C.F.R. § 35.150.

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Here, the School District offers football games as a public
program, and the bleachers are one part of the facility in
which that program takes place. While sitting in the southside bleachers may offer a particular social experience, this
experience is merely incidental to the program the
government offers (i.e., football games), and providing this
experience is not fairly characterized as “a normal function of
a government entity.” Id.3
Moreover, “a court must construe regulations so as to give
effect to each provision,” and Daubert’s argument that the
bleachers are a public program would render the program
access standard meaningless. Ctr. for Biological Diversity v.
Salazar, 706 F.3d 1085, 1094 (9th Cir. 2013) (citing Boeing
Co. v. United States, 258 F.3d 958, 967 (9th Cir. 2001)). Title
II’s regulations clearly distinguish between newly constructed
or altered facilities, which must be made readily accessible to
individuals with disabilities, 28 C.F.R. § 35.151, and existing
facilities, which need only provide program access, 28 C.F.R.
§ 35.150. If program access required public entities to
structurally alter existing facilities whenever the existing
public seating is not readily accessible to individuals with
disabilities, section 35.150’s separate provisions for existing
facilities would serve no purpose.
For these reasons, we reject Daubert’s contention that the
relevant “program” is the south-side bleachers, and we

3

Although it is unpublished, the Fifth Circuit reached the same
conclusion in a well-reasoned opinion in Greer v. Richardson Independent
School District, 472 Fed. Appx. 287, 293 (5th Cir. 2012). In so doing, the
Fifth Circuit held that program access does not require “that a disabled
individual . . . be able to . . . experience [a high school football] game
from the general admission public bleachers . . . .” Id.

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conclude that the School District complies with Title II, so
long as it provides program access to its football games.
B. Program Access to Football Games
Daubert next claims that the School District fails to
provide him with program access to football games because
the seating that is available to individuals who use
wheelchairs does not comply with the ADAAG’s design and
integration requirements. This argument rests on a
misunderstanding of the governing regulations, and we reject
it.
As discussed above, only facilities that were constructed
or altered after January 26, 1992 are subject to the ADAAG’s
requirements. 28 C.F.R. § 35.151(a)(1). With respect to
facilities that were constructed prior to this date, a public
entity need only “operate each . . . program [at that facility]
. . . [so that it] is readily accessible to and usable by
individuals with disabilities.” Id. § 35.150(a). Like the
ADAAG, section 35.150 prioritizes integration, but it does
not require existing facilities to undergo structural changes to
achieve integration. Id. § 35.150(b)(1); see also Lane,
541 U.S. at 532.
Football games at the Lindsay High School football
stadium are “readily accessible” to individuals who use
wheelchairs. See 28 C.F.R. § 35.150(a). The School District
offers many different locations from which spectators who
use wheelchairs are able to view football games, and it is
undisputed that such spectators enjoy unobstructed views
from at least three of these locations.

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Moreover, the current seating is appropriately integrated
under the circumstances. See id. § 35.150(b)(1). Spectators
who use wheelchairs may sit with companions and are able to
sit directly in front of the bleachers, to each side of the
bleachers, and in other areas where spectators congregate. In
light of the structure of the facility, any further measures to
provide integrated wheelchair seating would require the
School District to undertake structural alterations of the
bleachers. Because we conclude that the School District
provides Daubert with program access to Lindsay High
School football games under 28 C.F.R. § 35.150, and because
the School District is not required to comply with the
ADAAG, the School District is not required to make such
structural alterations.
CONCLUSION
For the reasons stated, Daubert has not established that
the School District excludes him from a public program, and
he therefore fails to make out a prima facie case of
discrimination under Title II of the ADA. Accordingly, we
affirm the judgment of the district court.
AFFIRMED.