Fifth Circuit Issues Lengthy, Unpublished Opinion on Program Accessibility

It is hornbook ADA law that newly constructed and renovated facilities of state and local governments must be fully accessible under the ADA Standards for Accessible Design (formerly the ADAAG), while pre-existing facilities need satisfy only the lesser standard of "program accessibility."  Under the program accessibility standard, the program as a whole, and not every aspect of every facility, must be accessible.  Sometimes, compliance with the program accessibility standard will require structural alterations of the government entity's facilities, but not always.  If the program can be made accessible to people with disabilities without making structural changes, the government entity doesn't have to make those changes.

Yesterday, in a case entitled Greer v. Richardson Independent School District, the Fifth Circuit issued an unpublished opinion that contains an instructive discussion of the differences between the full-access standard that applies to new public facilities and the program-access standard that applies to existing public facilities.  The plaintiff, who uses a wheelchair, went to the defendant's football field (built in 1968, well before the ADA) to watch her son's football game.  The bleachers weren't accessible, so she found a space to watch the game behind a chain-link fence, where she could see only 15 percent of the game.  She sued under Title II of the ADA, and the parties cross-moved for summary judgment.  The district court denied the plaintiff's summary judgment motion but granted summary judgment to the defendant.

Affirming, the court of appeals concluded that the record conclusively demonstrated that defendants offered accessible seating at its football field that was "either immediately adjacent to or in front of the bleacher seating for the general public."  The court relied on photographs of the area, in addition to sworn statements from two wheelchair users who testified that they have not had problems attending and viewing games at defendant's football field.  Although the plaintiff had introduced an expert report about the accessibility problems at the football field, the court found that report irrelevant to the program accessibility question:

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.

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Many of the observations in the expert report do not relate to whether RISD provides program access to disabled individuals attending events at Berkner B and others are inapposite because Greer failed to offer evidence that the allegedly non-compliant structures in or around the Berkner B stadium have been modified since the ADA was enacted in 1992 and thus may be required to comply with the ADAAG requirements. Additionally, Greer has failed to demonstrate how minor deviations from the ADAAG requirements in various parts of the stadium identified by her expert, such as a quarter-inch variance in “maximum beveled slope” on one designated wheelchair viewing area or bathroom mirrors that are mounted seven inches too high, prevent her or other disabled individuals from accessing the program at Berkner B, i.e., watching a football game.

I have my quarrels with some aspects of the Fifth Circuit's opinion here -- it contains a footnote that seems unjustifiably to downplay the importance of integration for people with disabilities, and its application of the summary judgment standard is debatable -- but the discussion of the difference between the full-access and program-access requirements is important.