where they please the court michael ashley was not able to attend her son's performances with the local elementary school choir for its two thousand and fourteen two thousand and fifteen christmas concerts because at the concerts were taking place in multi story building without an elevator or a ramp with not accessible to her person with a disability even though this activity was taking place off of school grounds t performance of the school choir recognized extracurricular group led by teacher with the principal in tow with a service program for activity of the school and the district court's decision to the contrary is erroneous and must be reversed it's clear that under the a b a and the rehabilitation act that the notion of services program or activity in competition is anything a public entity does as this court you know that according to regulations including as five  four statute says all the operations of a local educational agency there's no doubt here that the school choir as i said recognized extracurricular activity directed by teacher and meeting in the school weekly to rehearse and planned concerts was at that time an activity of a public entity indeed the regulations of the school system indicate that extra curricular activities are considered an integral part of the school corporation's education program when the school determined to take it show on the road as it were and go to the war county museum for the christmas concerts it didn't change the fact that this was still a school service program or activity the school system seems to concede as i believe it must that if in fact there was a formal contract where the school system negotiated with the museum for this otherwise empty space to  agreement what kind of situation was there or was that developed in your in the record the record indicates your honor that the museum offered its space beginning in two thousand  groups from the school individual groups they would come for their concert it would be in this case the day for the local elementary school concert the museum would advertise that but the school would also advertise that all the parents of the students in that choir would get an invitation we have in the record the the news of the calendar from the school which lists the choir and therefore the choir for if you see therefore there was clearly a mutual understanding this is a power this is a program for the museum to get people to come into the museum particular that age at that age level well the museum certainly had a reason for doing this but the school had a reason for doing it to on the night of the museum of the performance this was the performance of the evening performance of the local elementary school choir and as we say in our brief and he one of us who's had children or grandchildren these taught sort of things we know that's a command performance and we want to be there because it's the time for this students to show off what they ended learning all year in this extra curricular which is why the museum wanted in there two wars certainly it was it was certainly a mutual dependent relationship i think we could probably argue there were software oral contract but we don't have to worry about that because under the rehab act in the eighty eight is quite clear that an entity public entity be not engage in direct discrimination through contract through licensing or through other range you're talking about thirty five point one thirty regulation yes sure and this was clearly and other arrangement this was an arrangement benefited the museum there's no doubt about that but it benefit the school and it was a school event so this was at least a service provided by the school district to the museum if nothing else yes but i would also argue that if it remained a program or activity of the slam district but but then you read this regulation is in effect saying you can't e will that's correct and you cannot and you cannot in essence sub contractor some other arrangement the requirements of the a you cannot say as the school superintendent admit it we don't even look  case that i'm not that's something that has not been brought up by obviously i'm not at positions argue with doctors just got to grips true and a half weeks ago so we really did have a chance to talk to you that this i understand  pin to remember is that we're dealing with a statute which is broadly construed to protect persons with disabilities and what we have here is a situation where we have to recognize extra curricular activity integral to the educational function being taken so that this performance can occur in another facility in or go to the educational function as one of the low compared to the the under title three of the a b a not title two not a public entity that the museum actually is a former public school back was decommissioned so it's private now like many of small counties exactly and under title three there is a rather robust defen not necessarily president title two for a substantial alteration of an older facility the museum was able to finally put a a elevator in almost a year i guess in september after the loop the december  two thousand fifty christmas concert but the museum is not a party because this was an activity of the school and it was and competent on the school to protect the rights of eligible persons with disabilities as certainly is also you touched on this with the calendar just records say anything other than the calendar or the terms of advertising was the museum has got flyers was there posted posters around the tal the the school we know did post it on their counter and did send home notes with the parents to the kids for the parents saying that this event was occurring that the kids were it actually performing but there was on the general they need they need transportation or because the school wasn't giving it the schools knocking transmission because it was at six pm but it was eight the parking lot was full and it was a guy i assume what what we a more promoted i would say this particular incident then through school i don't know i know how to school can promote other than put on it's counter and i'll find a same way by a newspaper articles and online there i think as i said this is a mutual thing on both sides and that there's no question there's a mutual right went out to the various choirs of the elementary schools but on this particular night for those two years it was only the local metric school players it was a service program right to the school and therefore the district court should reversed and  answered by judge young about whether or not the museum's fundraising event was a service program or activity of the school and in making that determination what is important to do is look at what was provided by the school and that  so what was provided by the school here was provided by the school was a community service opportunity for its students and a performance opportunity for its students form its experience that is distinct to what the museum provided in the the if you look at the regulation that talks about the contractual relationship if you read those words together in the phrase what they're talking about is a close relationship and that's borne out in the ib case that the first circuit decided that you're looking at a contract like relationship what was the relationship the relationship here was the school was a guest of the museum this wasn't akin to a joint venture of the kind it was the school was providing entertainment for the museums benefit so that the museum could promote its own organisation so it could draw people and for the purpose of getting visitors to the museum and also because they were soliciting donations for the museum school didn't get any of those donations this was a fund raising event for the if this was a voluntary you show up maybe give a dollar and go in a real there was no ticket price and correct correct that's correct and the museum served cookies and punch and was generally the host this event in it's also important to look at in the context of what else was going on of the museum during this time of year the advertisement that the museum put out which is in the record talks about holiday happenings at the museum and includes multiple performances by local schools and says children's choirs are becoming to perform and also talks about their holiday bazaar their festival of trees and multiple classes for things like painting ornaments this was part of a broader scheme to draw the community into the school there was a mention of it in the in the calendar but it's not worded in as an invitation and it's not on the things like the gentleman below will be there the bookmobile there are ice cream days at the it's i'm sorry it says a public public entity in providing any benefit or service may not directly or through contractual licensing or other arrangements on the basis of disability deny a qualified individual with a disability the opportunity it sector to participate or benefit why don't we have here a public entity that performed a service it would require a close relationship a kin to an agency or contractual relations where do you find the authority for that by the rules of statutory construction if you're considering that phrase together to go far afield and say the other arrangement can be something that doesn't look like a contract if i may drop you don't think you should put your finger right on that thing it's bothering us right there there's a little somewhere the what kind of on arrangement gets to be very port and we don't want to restrict the state of the we don't want to restrict the scope of the statute that has to be in we're told has to be attributed broadly sort of the same time we don't want to get folks like your clients in trouble by extending it too far where you really don't have control of things interest me that's basically right that's exactly the problem that's what the regs try to deal with here in in language the other issue with that regulation is that begs the ultimate question of who's program service or activity was the public component of this event and because it was held open by the museum it wasn't the school providing the public and you're not the others point in his brief or not one it's no singing no program people to take care of you that night so we're going to have to cancel that or the school could have said the same saying there's no i think to be gained or lost by either party right there's no obligation for it to occur this was like they were invited they were guests at the museums program even presuming that this court were to find that the museum that fundraising about was an activity of the school in its entirety including the public component there are still several other issues with plaintiffs claim the most important of which i think is the reasonable accommodation issue because there are really only two options here for what could have been done and neither of which is a reasonable accommodation the first of course is don't accept the invitation but the problem with that is that isn't actually an accommodation because then mr ashby couldn't participate and probably program that wasn't happening and that certainly is a fundamental alteration of the a performance that was going to happen anyway and just happened to happen museum there was no play and had this performance otherwise the only reason the school had it is because they were invited by the museum so by moving you would fundamentally alter it and also require the school create an activity that wouldn't otherwise occur and that's simply not a reasonable accommodation and not required by the law so that would become an issue what do you do in this circumstance there is no reasonable accommodation available the school now this school has no control obligation over that the architecture of the museum i think i have fifteen seconds remaining so there aren't any more questions i'll see the retain name i don't think so thank you very much not to go beyond reversing the district court on the one point it decided which was the program service activity point but if it does go further clearly the supreme court in tennessee versus wade in quoting the relevan statute recognized that a public entity may comply with title two by relocating services and having rehearsed for a semester their christmas songs and christmas skits or jokes i guess the school could easily relocated this concert to an evening at the school which is accessible for the parents and grandparents to see the children thank you thank you thanks to both counsel on the case is taking under advi