Ability Center v. Sandusky , 385 F.3d 901 ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 04a0340p.06
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ABILITY CENTER OF GREATER TOLEDO, et al., X
Plaintiffs-Appellees/ -
Cross-Appellants, -
- Nos. 03-3277/3339
-
v. >
,
-
CITY OF SANDUSKY and GERALD A. LECHNER, in his -
official capacity, -
Defendants-Appellants/ -
Cross-Appellees. -
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 99-07555—James G. Carr, District Judge.
Argued: June 11, 2004
Decided and Filed: October 1, 2004
Before: KEITH, CLAY, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: William P. Lang, Avon Lake, Ohio, for Appellants. Thomas J. Zraik, ZRAIK LAW OFFICES,
Sylvania, Ohio, for Appellees. ON BRIEF: On Brief:William P. Lang, Avon Lake, Ohio, for Appellants.
Thomas J. Zraik, ZRAIK LAW OFFICES, Sylvania, Ohio, for Appellees.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Ability Center of Greater Toledo, Statewide Independent
Living Council, and five individuals with disabilities1 – collectively, the plaintiffs-appellees/cross-appellants
– filed this class action lawsuit against defendants-appellants/cross-appellees the City of Sandusky, Ohio,
and Gerald A. Lechner (in his official capacity as Sandusky’s city manager). Plaintiffs alleged that
defendants violated Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131–12165,
and related regulations by failing to install proper accommodations for disabled individuals in the course
of renovating Sandusky sidewalks and street curbs, and by failing to develop a transition plan for
1
These ind ividuals are Cora L ee B oswo rth, M ary Butler, Shona Eakin, W ood y Osb urn, and T racy Justesen.
1
Nos. 03-3277/3339 Ability Center et al. v. City of Sandusky et al. Page 2
implementing ADA requirements. The district court granted summary judgment to plaintiffs on the former
claim and summary judgment to defendants on the latter. Defendants filed a motion for reconsideration of
the district court’s grant of partial summary judgment to plaintiffs, which was denied. Defendants now
appeal this grant of partial summary judgment to plaintiffs and the denial of their motion for reconsideration,
while plaintiffs cross-appeal the district court’s grant of partial summary judgment to defendants. For the
following reasons, we affirm.2
I.
In a class action complaint filed on September 8, 1999, plaintiffs asserted two basic claims against
defendants. First, plaintiffs alleged that, in the process of replacing and repairing certain Sandusky
sidewalks and street curbs, defendants failed to install proper curb cuts and ramps in accordance with
28 C.F.R. § 35.151. Second, plaintiffs alleged that defendants failed to adopt a transition plan pursuant to
28 C.F.R. § 35.150(d). Plaintiffs sought declaratory and injunctive relief as well as monetary damages.
Each side filed a motion for summary judgment on these claims.
On February 16, 2001, the district court entered an interlocutory order granting in part and denying
in part the parties’ respective motions. Specifically, the court granted summary judgment to plaintiffs on
their first claim, finding that defendants did not comply with § 35.151 when altering various Sandusky
streets, sidewalks, and curbs. With respect to their second claim, the court held that Title II does not provide
a private right of action for the enforcement of § 35.150(d) and accordingly granted summary judgment to
defendants. The court also concluded that plaintiffs were not entitled to compensatory or punitive damages
because such damages are not available under Title II absent proof of intentional discrimination, which
plaintiffs could not show.
Defendants filed a motion for reconsideration with the district court on April 25, 2001, pursuant to
Fed. R. Civ. P. 59(e). They argued that the then newly decided case of Alexander v. Sandoval, 532 U.S. 275
(2001), demonstrates that Title II does not provide private parties a cause of action for pursuing violations
of § 35.151. Plaintiffs opposed the motion, as did the Department of Justice, which filed an amicus curiae
brief in support of plaintiffs’ position. The district court ultimately disagreed with defendants and denied
their motion.
On January 17, 2003, the district court entered a final order certifying the class, granting plaintiffs
declaratory and injunctive relief on their § 35.151 claim, awarding plaintiffs attorneys’ fees, and establishing
a scheme for monitoring defendants’ compliance with the order. Defendants filed a timely appeal and now
challenge the district court’s grant of partial summary judgment to plaintiffs and its denial of their motion
for reconsideration, arguing that the court erred in finding that plaintiffs have a private cause of action under
Title II to challenge violations of § 35.151. Plaintiffs cross-appeal the district court’s grant of partial
summary judgment to defendants, arguing that Title II provides them a private cause of action for
challenging defendants’ failure to adopt a transition plan in accordance with § 35.150(d).
II.
We review a district court’s grant of partial summary judgment de novo, Campbell v. Potash Corp.
of Saskatchewan, Inc., 238 F.3d 792, 797 (6th Cir. 2001), as we do a district court’s denial of a motion
2
The Supreme Co urt recently decided in Tennessee v. Lane, 124 S. Ct. 1978 (20 04), that Title II does not abro gate state
sovereign immunity in violation of the Eleventh Amendment to the extent that it requires states to grant disabled ind ividuals access
to courthouse s by providing them with reasonable acco mmo dations. This case presents no Eleventh Amendment issue since the
amendment protects only states and not municipalities. Mt. Healthy City Sch. Dist. Bd. of Ed uc. v. D oyle, 429 U.S. 274, 280
(1979); see also Bd. of Trs. of the Univ. of Ala . v. Ga rrett, 531 U.S. 356, 369 (2001) (“[T]he Eleventh Amendment does not
extend its immun ity to units of local governm ent.”).
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seeking reconsideration of a grant of summary judgment. Northland Ins. Co. v. Stewart Title Guar. Co., 327
F.3d 448, 454-55 (6th Cir. 2003).
A.
Title II of the ADA 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.” § 202, 42 U.S.C. § 12132. “Public
entity” includes “any state or local government” and “any department, agency, special purpose district, or
other instrumentality of a State or States or local government.” § 201, 42 U.S.C. § 12131(1)(A) & (B). The
Act grants the Attorney General authority to promulgate regulations to implement its provisions. § 204,
42 U.S.C. § 12134. Pursuant to § 204, the Attorney General adopted 28 C.F.R. § 35.151, which provides
that alterations of facilities3 commenced after January 26, 1992, “by, on behalf of, or for the use of a public
entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the
maximum extent feasible, be altered in such manner that the altered portion of the facility is readily
accessible and usable by individuals with disabilities.” Id. § 35.151(b). The regulation further specifies that
alterations should meet certain accessibility standards, id. § 35.151(c), and that altered streets and pedestrian
walkways must contain curb ramps. Id. § 35.151(e). Section 35.151 is part of a broader regulatory scheme
that aims to effectuate § 202 of the ADA. See 28 C.F.R § 35.101. The scheme makes explicit that “no
qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable
by individuals with disabilities, 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 public entity.” Id.
§ 35.149 (emphasis added).
Defendants do not dispute the district court’s finding that they failed to comply with § 35.151,4 nor
do they assault the reasonableness or validity of the regulation or of Title II more generally. Rather, they
argue only that – in light of Sandoval – the ADA provides a private cause of action under Title II solely for
claims based on intentional discrimination.5 Since the district court found that they did not intentionally
discriminate against plaintiffs, the defendants contend, plaintiffs have no valid cause of action against them
under Title II to enforce § 35.151 and obtain injunctive or declaratory relief.6 Limiting our inquiry to the
issue presented to us, we now turn to defendants’ argument.
Title II stipulates that “[t]he remedies, procedures, and rights set forth in [§ 505 of the Rehabilitation
Act, 29 U.S.C. § 794a,] shall be the remedies, procedures, and rights this subchapter provides to any person
alleging discrimination on the basis of disability in violation of section 12132 of this title.” § 203, 42 U.S.C.
3
Facilities include road s and walks. 28 C.F.R. § 35.1 04.
4
The parties and the district court characterized the defendants’ failure to meet the requirements of § 35.151 as a form of
dispa rate impact discrimination. It is not clear that this characterization is apt. The Second C ircuit has held that, under Title II,
“a claim o f discrimination based on a failure reasonably to accommodate is distinct from a claim of discrimination based on
dispa rate impact.” Hen rietta D. v. Bloo mberg, 331 F.3d 261 , 276 -77 (2 d Cir. 200 3); see also Lee v. City of Los Angeles, 250 F.3d
668, 690 -91 (9th Cir. 2001) (stating that Title II of the ADA “not only prohibits public entities from discriminating against the
disabled, it also prohibits public entities from excluding the disabled from participating in or benefitting from a public program,
activity, or service solely by reason of disability”) (quotation omitted). We need not de cide how vio lations o f § 35 .151 should
be ch aracterized beca use it is unne cessary to the resolution of this ap peal.
5
Aside from se eking re lief for disability discrim ination b y filing a lawsuit, a private party has the option of filing a complaint
of disability discrimination with the appropriate federal agency, 28 C.F.R . § 35 .170 , which shall then investigate the complaint
and attemp t to obtain compliance fro m an o ffender if it finds that discrimination has occurred . Id. §§ 3 5.17 2 – .1 74.
6
The issue of whether a private cause of action exists under Title II for monetary relief absent evidence of intentional
discrim ination is not before us. The district court rejected plaintiffs’ request for monetary relief because they failed to offer
evidence of intentional discrimination, and plaintiffs do not appeal this ruling.
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§ 12133. Section 505 of the Rehabilitation Act, in turn, adopts “[t]he remedies, procedures, and rights set
forth in title VI of the Civil Rights Act of 1964.” 29 U.S.C. § 794a(a)(2).7 In short, the remedies,
procedures, and rights available under Title II of the ADA parallel those available under Title VI of the Civil
Rights Act of 1964.
In Sandoval, the Supreme Court addressed the scope of private causes of action available under § 601
of Title VI, which provides that “[n]o person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. The case
involved a regulation promulgated under Title VI by the United States Department of Justice pursuant to
§ 602, 42 U.S.C. § 2000d-1, that prohibited recipients of federal funding from “utiliz[ing] criteria or
methods of administration which have the effect of subjecting individuals to discrimination because of their
race, color, or national origin.” 28 C.F.R. § 42.104(b)(2) (2000). The plaintiffs claimed that the Alabama
Department of Public Safety – a recipient of federal funds – violated the regulation by administering state
driver’s license exams only in English, which it did in accordance with an amendment to the Alabama
constitution that declared English as the state’s official language.
The Court considered whether the plaintiffs could, as private parties, proceed on their disparate
impact claim and secure injunctive relief.8 The Court began by noting that “private rights of action to
enforce federal law must be created by Congress.” Sandoval, 532 U.S. at 286. Whether a statute provides
for a private cause of action, it continued, depends upon whether the statute in question demonstrates that
it was Congress’s intent to create such a cause of action. Id. The Court recognized that it had already
determined that Congress intended that private individuals be able to sue to enforce § 601 and obtain both
injunctive relief and damages. Id. at 279. Yet, § 601 prohibits only intentional discrimination. Id. at 280.
Since “[a] Congress that intends [a] statute to be enforced through a private cause of action intends the
authoritative interpretation of the statute to be enforced as well,” the Court found that any Title VI
regulations properly effectuating § 601’s ban on intentional discrimination would be enforceable through
the private cause of action available under that provision. Id. at 284. However, the Court proceeded, as
§ 601 does not itself prohibit actions that disparately impact racial groups, related regulations that proscribe
disparate impacts – such as 28 C.F.R. § 42.104(b)(2) – do not simply apply the provision. Sandoval,
532 U.S. at 285. Hence, the private cause of action available for enforcing § 601 does not extend to such
regulations. Id. If a private cause of action existed to enforce 28 C.F.R. § 42.104(b)(2), the Court reasoned,
it could only originate from § 602, the provision of Title VI pursuant to which the regulation was adopted.
Sandoval, 532 U.S. at 286. Ultimately, the Court concluded that there was no indication in Title VI that
Congress intended § 602 independently to provide for a private cause of action and, therefore, that no private
cause of action existed for enforcing the disparate impact prohibitions of § 42.104(b)(2). Sandoval, 532 U.S.
at 288-93.
7
Section 505 actually offers two sets of remedies, “one for employment discrimination (§ 794a(a)(1)), and one for
discrimination by entities providing federal assistance (§ 794a(a)(2)).” Johnson v. City of Saline, 151 F.3d 56 4, 573 (6th Cir.
1998). As this court explained in Johnson, the remedies enum erated at § 794a(a)(2) ap ply in Title II cases. Id.; see also Barnes
v. Gorman, 536 U.S. 181, 189 n.3 (2002) (recognizing that the remedies, procedures, and rights available under § 794a(a)(2) are
those availab le under T itle II); Olmstead v. L.C., 527 U.S. 581 , 590 n.4 (1999 ) (same).
8
The Court expressly limited its inquiry to whether the regulation in question could be enforced through a private cause of
action. The Court noted:
W e do not inquire here whether the DOJ regulation was authorized by § 602 . . . . The petition for writ of certiorari
raised, and we agreed to review, only the question p osed in the first paragraph of this opinion: whether the re is a private
cause of action to enforce the regulation.
Sandoval, 532 U .S. at 279. Indeed, the Court assumed the regulation at issue was valid. Id. at 282. Likewise, we assume 28
C.F.R . § 35 .151 is a validly enacted regulation. See also Olmstead, 527 U.S. at 592 (discussing Title II regulations and noting
that “[w]e recite these regu lations with the cav eat that we do not here determine their validity”).
Nos. 03-3277/3339 Ability Center et al. v. City of Sandusky et al. Page 5
What Sandoval makes clear is that a private plaintiff cannot enforce a regulation through a private
cause of action generally available under the controlling statute if the regulation imposes an obligation or
prohibition that is not imposed generally by the controlling statute. See id. at 284-85. On the other hand,
if the regulation simply effectuates the express mandates of the controlling statute, then the regulation may
be enforced via the private cause of action available under that statute. Id. at 284. For example, if a
statutory provision prohibits only intentional discrimination, as was the case in Sandoval, regulations
adopted to effectuate the provision may be enforceable through its private cause of action only to the extent
that they, too, prohibit intentional discrimination.
The Court has recognized that § 202 of Title II, 42 U.S.C. § 12132, is enforceable through a private
cause of action. Barnes v. Gorman, 536 U.S. 181, 184-85 (2002); see also Parker v. Universidad de Puerto
Rico, 225 F.3d 1, 8 (1st Cir. 2000) (“Although Title II does not expressly authorize a private cause of action,
it adopts the remedial scheme of Title VI of the Civil Rights Act of 1964, under which there is an implied
private cause of action.”). This private right of action exists under § 203 of Title II, 42 U.S.C. § 12133, and
derives from the fact that § 203 ultimately adopts the remedies, procedures, and rights set forth in Title VI,
which, as noted, is itself enforceable through a private cause of action. Barnes, 536 U.S. at 185. Plaintiffs’
claims are based upon defendants’ failure to meet the requirements of 28 C.F.R. § 35.151, which was
promulgated pursuant to 42 U.S.C. § 12134 to effectuate § 202. See 28 C.F.R. § 35.101. Whether 28 C.F.R.
§ 35.151 is enforceable through Title II’s private cause of action, then, depends on whether the regulation
effectuates a mandate of § 202.9 If the architectural requirements imposed on public entities by § 35.151
effectuate a mandate of § 202, then the regulation is enforceable through the private cause of action available
under Title II. On the other hand, if the regulation’s architectural requirements impose unique obligations
on public entities not contemplated by § 202, then the regulation is not enforceable through Title II’s private
cause of action.
We find that 28 C.F.R. § 35.151 effectuates a mandate of Title II and is therefore enforceable through
the private cause of action available under the statute. Title II does more than prohibit public entities from
intentionally discriminating against disabled individuals. It also requires that public entities make reasonable
accommodations for disabled individuals so as not to deprive them of meaningful access to the benefits of
the services such entities provide. Moreover, Title II contemplates that such accommodations must
sometimes come in the form of public entities removing architectural barriers that impede disabled
individuals from securing the benefits of public services.
The Supreme Court provided considerable guidance on these matters in its recent decision in Lane.
In the context of deciding that – to the extent that it requires public entities to provide qualified disabled
individuals meaningful access to courthouses – Title II does not violate the Eleventh Amendment by
impermissibly abrogating state sovereign immunity, the Court described the purpose of Title II and the
nature of the obligations it creates:
Recognizing that failure to accommodate persons with disabilities will often have the same
practical effect as outright exclusion, Congress required the States to take reasonable
measures to remove architectural and other barriers to accessibility. 42 U.S.C. § 12131(2).
But Title II does not require States to employ any and all means to make judicial services
accessible to persons with disabilities, and it does not require States to compromise their
essential eligibility criteria for public programs. It requires only “reasonable modifications”
that would not fundamentally alter the nature of the service provided, and only when the
9
Because “private rights of action to enforce federal law must be created by Congress,” Sandoval, 532 U.S. at 286, the fact
that 28 C .F.R. § 35.1 72 states that a private party who has filed a disability discrimination complaint with the appropriate agency
may “at any time . . . file a private suit pursuant to section 203 o f the [ADA]” does not authoritatively demonstrate that Title II
regulations are enforceable through a private cause of action. Furthermore, by stating that private suits may be filed “pursuant
to section 203,” the regulation merely begs the question of what types of private suits may be filed under that provision, a question
we ad dress here.
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individual seeking modification is otherwise eligible for the service. Ibid. As Title II’s
implementing regulations make clear, the reasonable modification requirement can be
satisfied in a number of ways. In the case of facilities built or altered after 1992, the
regulations require compliance with specific architectural accessibility standards. 28 C.F.R.
§ 35.151 (2003).
Lane, 124 S. Ct. at 1993 (emphasis added). Justice Ginsburg, in concurrence, noted that “Congress’
objective in enacting the Americans with Disabilities Act [was] the elimination or reduction of physical and
social structures that impede people with some present, past, or perceived impairments from contributing,
according to their talents, to our Nation’s social, economic, and civic life.” Id. at 1996 (Ginsburg, J.,
concurring). Justice Ginsburg continued, “Congress understood in shaping the ADA [that it] would
sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but
accommodation.” Id. The clear implication of Lane is that Title II mandates not only that public entities
refrain from intentionally discriminating against disabled individuals but that they also make certain
accommodations to the disabled in the course of providing public services, which should include removing
architectural barriers in the manner prescribed by 28 C.F.R. § 35.151.
The Court also indicated that Title II targets more than intentional discrimination in Olmstead v. L.C.,
527 U.S. 581 (1999). Although it did not fully define the bounds of discrimination under the ADA, the
Court stated that Congress advanced “a more comprehensive view of the concept of discrimination” in Title
II than one limited to the traditionally recognized categories of intentional and disparate impact
discrimination. Id. at 598. Together, these cases strongly intimate that Title II, as opposed to Title VI,
concerns more than intentional discrimination. In fact, by citing 28 C.F.R. § 35.151 in Lane as an exemplar
of the type of requirements Title II imposes, the Court suggested that it is precisely the type of regulation
that effectuates the mandates of Title II, which in turn suggests that the regulation is enforceable through
Title II’s private cause of action.
In ascertaining whether 28 C.F.R. § 35.151 effectuates the mandates of Title II, it also is helpful to
consider the scope of the Rehabilitation Act, because the ADA and the Rehabilitation Act “are quite similar
in purpose and scope.” McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir.
1997); see also H.R. Rep. No. 101-485, pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367 (stating
that § 202 “extends the nondiscrimination policy in section 504 of the Rehabilitation Act of 1973 to cover
all State and local governmental entities”). Indeed, the language of § 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794, is nearly identical to that of § 202. Compare 29 U.S.C. § 794(a) (“No otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance . . . .”), with 42 U.S.C. § 12132 (“[N]o 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.”). In light of these similarities, we have held that “[t]he analysis of claims under the [ADA]
roughly parallels those brought under the Rehabilitation Act.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996). As a result, “cases construing one statute are instructive in construing the
other.” Andrews v. Ohio, 104 F.3d 803, 807 (6th Cir. 1997); see also Rogers v. Dep’t of Health & Envtl.
Control, 174 F.3d 431, 434 (4th Cir. 1999) (“Relevant Rehabilitation Act precedent . . . may inform our
understanding of what [Title II] requires.”).
In Alexander v. Choate, 469 U.S. 287 (1985), the Supreme Court considered whether private litigants
could present a disparate impact claim under § 504 of the Rehabilitation Act to challenge the State of
Tennessee’s decision to reduce the number of days of inpatient hospital care it covered annually per patient
under its state Medicaid program. The Court assumed without deciding that certain disparate impacts are
actionable under § 504. 469 U.S. at 299. In making this assumption, the Court noted that the Rehabilitation
Act was motivated by Congress’s determination that “[d]iscrimination against the handicapped . . . [is] most
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often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign
neglect.” Id. at 295. The Court further noted that
much of the conduct that Congress sought to alter in passing the Rehabilitation Act would
be difficult if not impossible to reach were the Act construed to proscribe only conduct
fueled by a discriminatory intent. For example, elimination of architectural barriers was one
of the central aims of the Act, yet such barriers were clearly not erected with the aim or
intent of excluding the handicapped.
Id. at 296-97 (emphasis added and citations omitted). What the Rehabilitation Act ultimately requires, the
Court determined, was that otherwise qualified disabled individuals “be provided with meaningful access
to the benefit that the grantee offers.” Id. at 301. Because Tennessee’s decision to reduce its support for
inpatient hospital care did not deprive qualified disabled individuals of meaningful access to Medicaid,
however, the Court determined that the decision was not actionable under the Rehabilitation Act. Id. at 309.
Choate is relevant to our inquiry in two ways. First, because Title II has aims similar to those of the
Rehabilitation Act and the two statutes are construed similarly, Choate demonstrates that Title II is not
simply a prohibition against intentional discrimination. Second, the implication of Choate is that Title II
prohibits public entities from denying, even unintentionally, qualified disabled individuals meaningful access
to the services or benefits they provide. In fact, by noting that the “elimination of architectural barriers was
one of the central aims of the Act” even though “such barriers were clearly not erected with the aim or intent
of excluding the handicapped,” id. at 297, it suggests that the conduct at issue here – defendants’ failure to
provide plaintiffs certain architectural accommodations – is actionable under Title II even when not
intentional.
Most importantly, our conclusion is supported by the text of Title II. Title II and the ADA more
broadly were motived in part by Congress’s finding that, in addition to “outright intentional exclusion,”
individuals with disabilities also suffer from indirect forms of discrimination, such as “the discriminatory
effects of architectural, transportation, and communication barriers, . . . [and] failure to make modifications
to existing facilities.” 42 U.S.C. § 12101(a)(5) (emphasis added). Congress stated that the purpose of the
ADA was to eliminate such discrimination, in part by using its power “to enforce the fourteenth amendment
and to regulate commerce [] in order to address the major areas of discrimination faced day-to-day by people
with disabilities.” Id. § 12101(b)(1) & (4). Such language shows that Congress, aside from merely hoping
to curtail intentional discrimination against the disabled, aimed to improve the quality of the lives of the
disabled by requiring that public entities – as well as other entities subject to the Act’s requirements –
eliminate barriers to physical access, including barriers inherent in existing facilities.
Title II itself carries this mandate. Section 202 reads: “[N]o 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.” 42 U.S.C.
§ 12132. By separately identifying as requirements of public entities that they not deny qualified disabled
individuals the benefits of public services and that they not discriminate against such individuals, the
provision demands more of public entities than simply refraining from intentionally discriminating against
disabled individuals. See Henrietta D. v. Bloomberg, 331 F.3d 261, 276 (2d Cir. 2003) (“A plaintiff can
prevail [under § 202, 42 U.S.C. 12132] either by showing ‘discrimination’ or by showing ‘deni[al of] the
benefits’ of public services.”) (quoting 42 U.S.C. § 12132); see also Olmstead, 527 U.S. at 600 (stating that,
with § 202, “Congress not only required all public entities to refrain from discrimination”). In stating that
public entities shall not deny qualified disabled individuals the benefits of public services, § 202 necessarily
requires that public entities provide such individuals the means necessary to acquire access to these services.
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Title II defines “qualified individual with a disability” in this manner:
The term “qualified individual with a disability” means an individual with a disability who,
with or without reasonable modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the provision of auxiliary aids
and services, meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.
§ 201, 42 U.S.C. § 12131(2) (emphasis added). Read together with § 202, this definition illustrates that Title
II imposes affirmative obligations on public entities and does not merely require them to refrain from
intentionally discriminating against the disabled. Section 202 dictates that a qualified individual with a
disability may not be denied the benefits of public services by a public entity because of her disability. A
person with an ambulatory disability who would be eligible for public services but for publicly imposed
architectural impediments to the receipt of such services is a qualified individual with a disability. By virtue
of § 202, a public entity could not deny the benefits of the public service to such an individual on account
of her disability. However, the architectural barriers do just that. Thus, to ensure that the individual is not
denied the benefits of the public service, the public entity must remove the architectural barrier of its own
creation. That is, if a disabled individual would be eligible for the receipt of certain public services if
architectural barriers were removed, he is a qualified individual with a disability. See § 201, 42 U.S.C.
§ 12131(2). In turn, a public entity may not deny this person the benefits of these public services, see § 202,
42 U.S.C. § 12132, which are only being denied to him because of architectural barriers. Hence, to avoid
denying the individual of the benefits of the public services at issue, the public entity must remove the
impeding architectural barriers. This illustration makes clear that Title II demands that, in certain instances,
public entities take affirmative actions to provide qualified disabled individuals with access to public
services.
Other portions of Title II make clear that 28 C.F.R. § 35.151 imposes requirements specifically
envisioned by the statute. For instance, Title II states that, with respect to regulations that affect program
accessibility and existing facilities, “such regulations shall be consistent with regulations and analysis as in
[28 C.F.R. § 39.101 et seq.], applicable to federally conducted activities under [§ 504 of the Rehabilitation
Act].” See § 204, 42 U.S.C. § 12134(b). As a regulation falling under Subpart D of part 35 of title 28 of
the Code of Federal Regulations, a subpart entitled “Program Accessibility,” 28 C.F.R. § 35.151 is by
definition a regulation affecting program accessibility. Hence, Title II requires that it be consistent with
28 C.F.R. § 39.101 et seq. 28 C.F.R. § 39.101 et seq. are regulations ensuring that, in conformance with
§ 504 of the Rehabilitation Act, the disabled have access to programs and activities conducted by the
Department of Justice. Generally, the regulations require the Department of Justice to “operate each
program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and
usable by handicapped persons.” Id. § 39.150(a). While this mandate does not “[n]ecessarily require the
agency to make each of its existing facilities accessible to and usable by handicapped persons,” id.
§ 39.150(a)(1), the clear implication is that it will sometimes be necessary to alter a facility to comply with
the regulation.10 Indeed, “alteration of existing facilities” is one method available under the regulation to
achieve compliance with its terms. Id. § 39.150(b). When the agency alters an existing building or part of
an existing building, the building must be made readily accessible to and usable by disabled individuals, id.
§ 39.151, which echoes 28 C.F.R. § 35.151. By requiring that regulations promulgated in furtherance of its
program accessibility objectives be consistent with 28 C.F.R. § 39.101 et seq., Title II necessarily
contemplates that such regulations will, akin to 28 C.F.R. § 39.151, require that facilities altered by public
entities be made accessible to disabled individuals in the process. As a program accessibility regulation,
28 C.F.R. § 35.151 directly meets this mandate.
10
The regulations d efine “facility” as includ ing “roa ds, walks, [and ] parking lots.” 2 8 C.F.R. § 39.1 03.
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Elsewhere, Title II indicates that it seeks to impose the very architectural requirements enumerated
at § 35.151. Specifically, the statute provides that regulations adopted to effectuate § 202 “shall include
standards applicable to facilities” and that “[s]uch standards shall be consistent with the minimum
guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in
accordance with [42 U.S.C. § 12204(a)].” § 204, 42 U.S.C. § 12134(c) (emphasis added). 42 U.S.C.
§ 12204(a), in turn, directs the Compliance Board to adopt minimum guidelines that supplement the existing
Minimum Guidelines and Requirements for Accessible Design, which are located at 36 C.F.R. §§ 1190.1–
.60. The Minimum Guidelines require that altered facilities, which include roads and walks, 36 C.F.R.
§ 1190.3, shall meet accessibility standards. See id. § 1190.33. So that its aims are achieved, Title II
mandates that, in addition to these minimum guidelines, the Compliance Board “shall establish additional
requirements . . . to ensure that buildings [and] facilities . . . are accessible, in terms of architecture and
design . . . to individuals with disabilities.” 42 U.S.C. § 12204(b) (emphasis added). By mandating the
adoption of the foregoing regulations, Congress intended that Title II serve as a mechanism for imposing
affirmative architectural standards on public entities and that meeting such standards would be required of
public entities to conform with the dictates of § 202, particularly when public entities alter existing facilities.
The legislative history of Title II supports the notion that 28 C.F.R. § 35.151 effectuates an express
mandate of Title II and, hence, should be enforceable by the private cause of action available under Title II.
In fact, this history indicates that Congress intended for Title II to require of public entities that they make
some of the very accommodations required by 28 C.F.R. § 35.151. For example, the House Report that
accompanied the ADA states that, “under [Title II], local and state governments are required to provide curb
cuts on public streets.” H.R. Rep. No. 101-485, pt. 2, at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303,
367 (emphasis added). The Report continues, “The employment, transportation, and public accommodation
sections of this Act would be meaningless if people who use wheelchairs were not afforded the opportunity
to travel on and between the streets.” Id. Perhaps most instructive is an indication that Congress’s intention
was that the private cause of action available under Title II extend to the enforcement of its regulations as
well, insofar as a violation of a regulation resulted in a denial of access. The Report states that the remedies,
rights, and procedures available under § 505 of the Rehabilitation Act, 29 U.S.C. § 794a – which include
a private cause of action, Barnes, 536 U.S. at 185 – “shall be available with respect to any individual who
believes that he or she is being subjected to discrimination on the basis of a disability in violation of any
provisions of [Title II], or regulations promulgated under section 204, concerning public services.” H.R.
Rep. No. 101-485, pt. 2, at 98 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 381 (emphasis added). Being
one such regulation the violation of which impacts disabled individuals’ access to public services, Congress
intended that 28 C.F.R. § 35.151 be enforceable through Title II’s private cause of action.
Case law as well supports our determinations that Title II reaches beyond prohibiting merely
intentional discrimination and that 28 C.F.R. § 35.151 is a regulation that enforces Title II’s additional aims.
In Chaffin v. Kansas State Fair Board, the Tenth Circuit held that – Sandoval notwithstanding – the private
cause of action under Title II was available to enforce accessibility regulations adopted in furtherance of the
Act because the requirements imposed by the regulations fell within the scope of the requirements and
prohibitions of Title II. 348 F.3d 850, 857-60 (10th Cir. 2003). The court expressly noted that, “although
the conduct regulated by [Title VI] is limited to intentional discrimination, Congress sought with § 504 [of
the Rehabilitation Act] – and consequently with Title II of the ADA – to remedy a broad, comprehensive
concept of discrimination against individuals with disabilities.” Id. at 859-60 (citation omitted); see also
Thompson v. Colorado, 278 F.3d 1020, 1028 (10th Cir. 2001) (“[R]ather than preventing public entities from
treating the disabled differently than the nondisabled, Title II requires that public entities make certain
accommodations for the disabled in order to ensure their access to government programs.”). Excluding the
opinion on appeal, three district court opinions have also concluded that ADA regulations are enforceable
by Title II’s private cause of action because they effectuate the mandates of Title II. See Nat’l Org. on
Disability v. Tartaglione, No. Civ. A. 01-1923, 2001 WL 1231717, at *6 (E.D. Pa. 2001) (finding that
28 C.F.R. § 35.151 – the provision at issue here – could be enforced through Title II’s private cause of
action); Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 538-39 (E.D. Pa. 2001) (finding that
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private plaintiffs could present claims based on violations of ADA regulations that prohibit disparate impacts
and require integrated settings); Access Living v. Chicago Transit Auth., No. 00 C 0770, 2001 WL 492473,
at *6 (N.D. Ill. 2001) (finding that discrimination under Title II includes failure to make accommodations
for the disabled and that plaintiffs could enforce regulations that clarified this type of discrimination). In
Tartaglione, the court noted that, with § 204, Congress mandated that regulations be adopted to enforce Title
II’s prohibition of discrimination and that such regulations should conform with regulations adopted under
the Rehabilitation Act, specifically those at 28 C.F.R. § 39.101 et seq. 2001 WL 1231717, at *6. Finding
that 28 C.F.R. § 35.151 is “virtually identical” to these Rehabilitation Act regulations, the court concluded
that Congress intended that § 35.151 be enforceable through Title II’s private cause of action. Tartaglione,
2001 WL 1231717, at *6.
In conclusion, § 202 of Title II does not merely prohibit intentional discrimination. It also imposes
on public entities the requirement that they provide qualified disabled individuals with meaningful access
to public services, which in certain instances necessitates that public entities take affirmative steps to remove
architectural barriers to such access in the process of altering existing facilities. 28 C.F.R. § 35.151 is a
regulation adopted by the Attorney General at Title II’s express direction that effectuates this aim. As such,
the regulation is enforceable through Title II’s private cause of action available under § 203. Therefore,
plaintiffs do have a private cause of action against defendants for failing to comply with 28 C.F.R. § 35.151,
and we affirm the judgment of the district court on this issue.
B.
Plaintiffs argue that the district court erred in failing to find that 28 C.F.R. § 35.150(d) is also
enforceable through Title II’s private cause of action. They seem to suggest that, since Title II does more
than prohibit intentional discrimination, Sandoval is wholly inapplicable. This assertion is untenable.
Although the differences between Title II of the ADA and Title VI of the Civil Rights Act of 1964 mean that
the outcome in Sandoval does not necessarily dictate the outcome in this case, the analytical framework
provided in Sandoval for determining whether a regulation is enforceable through its controlling statute’s
private cause of action is directly applicable here. As with 28 C.F.R. § 35.151, we must determine whether
§ 35.150(d) enforces an express mandate of Title II or imposes unique obligations on public entities. If
§ 35.150(d) imposes obligations not explicitly contemplated by Title II, then it is not enforceable through
the Act’s private cause of action.
Section 35.150(d)(1) provides that, “[i]n the event that structural changes to facilities will be
undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop,
within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such
changes.” The provision specifically requires of a public entity that exercises control over streets that “its
transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian
walks cross curbs.” Id. § 35.150(d)(2). The district court concluded that, although defendants violated
§ 35.150(d), it is not enforceable through the private cause of action available under Title II.
The district court did not err. Plaintiffs assert that, like § 35.151, § 35.150(d) imposes obligations
necessitated by § 202 and that violations of the regulation are therefore actionable under that provision’s
private cause of action.11 While failing to provide curb cuts and other accommodations in the course of
altering city streets and sidewalks in violation of § 35.151 denies the disabled meaningful access to public
services by perpetuating architectural barriers that impede such access, failing to develop a transition plan
in violation of § 35.150(d) does not in and of itself similarly hinder the disabled. Section 35.150(d) may
create a procedural requirement that encourages public entities to consider and plan ways in which they will
11
Plaintiffs do not argu e that § 204 of Title II, 42 U.S.C. § 1 213 4, which grants the Attorney G enera l the autho rity to
promulgate regulations in furtheranc e of T itle II, independently creates a private cause of action through which § 35.150(d) may
be en forced. Therefo re, we need not ad dress this issue.
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accommodate the disabled, and it may ultimately facilitate compliance with Title II, but there is no indication
that a public entity’s failure to develop a transition plan harms disabled individuals, let alone in a way that
Title II aims to prevent or redress. Indeed, it is conceivable that a public entity could fully satisfy its
obligations to accommodate the disabled while at the same time fail to put forth a suitable transition plan.
Bolstering our conclusion is the fact that plaintiffs offer no argument that Title II expressly imposes
an obligation on public entities to develop transition plans. Plaintiffs’ best potential argument for an implied
obligation might be that, by mandating the adoption of program accessibility regulations consistent with
Rehabilitation Act regulations found at 28 C.F.R. § 39.101 et seq., see 42 U.S.C. § 12134(a)-(b), Title II
does contemplate that public entities are required to adopt transition plans. 28 C.F.R. § 39.150(d) does
specifically order the Department of Justice to adopt a transition plan before structurally altering a facility
under its control to make it accessible to the disabled. The argument would be that, with 42 U.S.C. § 12134,
Congress intended to impose the same requirement on public entities through Title II and that 28 C.F.R.
§ 35.150(d) is the actualization of this intent. Hence, the argument would continue, Title II does obligate
public entities to adopt transition plans, albeit indirectly, and § 35.150(d) – which merely effectuates this
obligation – is enforceable through its private cause of action.
We do not find this argument persuasive. If we concluded that § 35.150(d) is privately enforceable
on the basis that Title II contemplates transition plans because it references Rehabilitation Act regulations,
it would follow that all Rehabilitation Act regulations incorporated through Title II would be enforceable
through private causes of action, regardless of whether they are even privately enforceable under the
Rehabilitation Act and regardless of whether Title II indicated in any other way that it intended to impose
the obligation or prohibit the conduct at issue. Perhaps § 35.150(d) would be enforceable through Title II’s
private cause of action if there were a stronger, more explicit indication from the statute itself that Congress
viewed the creation of transition plans as integral to the achievement of the statute’s aims or that Congress
considered a public entity’s failure to adopt such a plan as a form of discrimination against disabled
individuals or as a failure to provide them with meaningful access to public services. But there is no
indication that Congress conceptualized of transition plans or the failure to adopt them in this manner.
As such, we conclude that § 35.150(d) does more than simply apply or effectuate § 202. Rather, it
creates obligations not necessarily required by § 202 and, therefore, it is not enforceable under Title II’s
private cause of action. See Sandoval, 532 U.S. at 285; see also Deck v. City of Toledo, 76 F. Supp. 2d 816,
823 (N.D. Ohio 1999) (“[T]here is no private right of action to enforce the self-evaluation and transition plan
requirements set forth in the regulations accompanying Title II.”); Matthews v. Jefferson, 29 F. Supp. 2d 525,
539-40 (W.D. Ark. 1998) (finding that the mere failure to adopt a transition plan in accordance with
§ 35.150(d) is not independently enforceable).
III.
For the foregoing reasons, we affirm the district court’s grant of partial summary judgment to
plaintiffs, its denial of defendants’ motion for reconsideration, and its grant of partial summary judgment
to defendants.