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In Daubert v. Lindsay Unified School District (9th Cir. - July 25, 2014) 1:09-cv-1463 GSA, the Ninth Circuit Court of Appeals affirmed the granting of the school district’s motion for summary judgment. Plaintiff claimed that the school football field public bleacher seating’s lack of wheelchair accessibility violated Title II of the Americans with Disabilities Act.  In that instance, the bleachers were accessible only by stairs and the other viewing locations were not on the field.On appeal, the court held that the District did not have to structurally alter the bleachers to provide access. Since the bleachers were constructed before the ADA’s January 26, 1992 enactment date and was never reconstructed or altered, it constituted an “existing facility” under the ADA. As such, the District need only provide program access by “operating each service, program, or activity so that (. . .) when viewed in its entirety, (it) is readily accessible to and usable by individuals with disabilities.”  (emphasis added)Importantly, the court interprets Title II as making a clear distinction between “facilities accessibility” and “program accessibility.”  The District need only provide access to the program.  Here, the public “program” being offered by the District is only the football game, which the bleachers are just part of the “facility” in which the program takes place.In Daubert, the District had three other specific locations from which persons using wheelchairs are able to watch the games.  Daubert, however, challenged that the alternative locations relegated him to an “inferior view” of the field and denied him a particular social experience.The court, however, reiterated that the program offered is the football game, to which, the social experience is merely incidental to this program. Additionally, in this matter, it was undisputed that the views were unobstructed in at least three of the alternative locations.Citing the Supreme Court ruling in Tennessee v. Lane, 541 U.S. 509, 532 (2004), the court explained 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 . . ..”  Structural changes in existing facilities are not required where other methods are effective in achieving compliance. [citing 28 C.F.R. Sec. 35.150(b)(1).]  ​The Leigh Law Group is a law firm located in San Francisco and Marin County focused on education law, special education law, civil rights, employment law and business law.

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