Wagstaff on Segways at Disneyland (and Everywhere Else)

My friend and former DOJ colleague Brandy Wagstaff has just published this piece: Brandy L. Wagstaff, Make Way for Segways: Mobility Disabilities, Segways, and Public Accommodations, 20 Geo. Mason L. Rev. 347 (2013).  The introduction:

“Segways at Disneyland? Could happen.” So sayeth Chief Judge Alex Kozinski of the Ninth Circuit. But, before anyone gets too excited, let us take a step back and really assess the possibility that we will see individuals cruising on Segways all over Disneyland, Disney World, or even your local mall. 

The question boils down to: Should Segways be treated like wheelchairs? And, if not, why not? 

The answer lies in 28 C.F.R. § 36.111--the U.S. Department of Justice's (“DOJ”) newly revised regulation under Title III of the Americans with Disabilities Act (“ADA”) as applied to mobility devices for persons with mobility disabilities. And this answer really matters to certain individuals with particular mobility conditions, such as multiple sclerosis and Parkinson's disease, who might prefer to use a Segway as a means of mobility in public places like malls or amusement parks, instead of a traditional wheelchair or scooter. 

Recently, the Ninth and Eleventh Circuits struggled with the application of this regulation, and while these two decisions are not necessarily in conflict with each other, they implicate some issues that help make sense of this interesting question. In Part I, this Essay sets forth the applicable law and examines the questions that courts, the DOJ, and places of public accommodation must answer in order to decide whether they can ban devices like Segways. Part II examines the two recent decisions involving Segways in the courts of appeals. Finally, Part III analyzes the particular case of Segways at Disneyland and whether the courts (and Disney) reached the correct decision.