1 Th ese ind ividua ls are C ora L ee B oswo rth, M ary B utler, Sh ona Eak in, W ood y Osb urn, an d T racy Ju stesen. RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

File Name: 04a03 40p.06 

### UNITED STATES COURTS OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

A BIL ITY C ENTE R OF G REATER T OLEDO , et al., Plaintiffs- Appellee s/ Cross-App ellants,

v.

C ITY OF S ANDUSKY and G ERALD A. L ECHNER , in his of fi ci al ca pa ci ty, Defenda nts-Appe llants/ Cross-App ellees. X

- - - -
> , - - - - - - N Nos. 03-3277/3339

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: KEI TH, CLAY, and GI BBONS, Circuit Judges.

_________________ COUNSEL

ARGUED: William P. L ang , Av on L ake , Ohio, for App ell ant s. Thom as J. Zraik, ZRAI K LAW O FFI CES, Sylvania, Ohio, for

Appellee s. ON BRI EF: OnBrief: William P. L ang, Avon La ke, Ohio, for Appe llants. Thomas J. Z

raik, ZRAIK

LAW OF FICE S, Sy

lvania, Ohio, for A

ppellee s.

_________________ OPINION

_________________ JU LIASMITH GI

BBONS, Circuit Judge. Ability Cente r of Greater Toledo, Statewide I ndependent Living Coun cil, and five individuals with disabilities 1 – collectively , th e plaintiffs-appellees/cross-appellant s – filed this class action

lawsuit a gainst d efenda nts-appe llants/cr

oss-appe llees the

City of Sandusky, Ohio, and Gerald A . Lec

hner (in his offic ial capa

city as Sandus ky’ 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 individu als in the c ourse of renovating Sandusky

sidewalks and street curbs, and by failing to develop a transition plan for

1Nos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 2

2 The Supreme Co urt recentl y decided in Tenn esse e v. Lane , 124 S.Ct. 1978 (20 04), that T itle II do es no t abro gate state sovereign immunit

y in violation of t

he Elevent

h Amendment to t

he exten t th at i t requi res st ates to grant disabled ind ividuals access to courthouse s by provid ing them with reason able acco mmo dations. This case presents no Eleventh Amendment issue since t he amendment pro tects on ly states and not m unicip alities. Mt. Heal thy Ci ty Sc h. Dis t. Bd. of Ed uc. v. D oyle , 429 U.S. 274, 280 (1979); see al

so Bd. of

Trs. of the Univ. of Ala . v. Ga rrett , 531 U.S. 356, 369 ( 2001) (“ [T]he El event h Amendmen t does not extend its immun ity to units of lo cal go vernm ent.”). implementing ADA requirements. The district court granted summary judgment to plaintiffs on the former claim and summa

ry judgmen t to defe ndants on the latter. Defendants filed a motion for reconsider ation of the district court’s grant of partial summary judgment to p laint iffs, 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 aff

irm. 2

I.

Ina class action

complain t filed on S eptembe

r 8, 1999, plaintiff

s asserte d two basic

claims against defenda nts. F irst, plaint iffs alleged that, in the process of repla cing and repairing ce

rtain Sandusky sidewalks and street curbs, defenda nts faile d to install

proper c urb cuts a

nd ramps i

n accor dance w ith 28 C.F.R. § 35 .151. Sec ond, plain tiffs alle ged tha

t defend ants fail ed to adopt a

transition plan pursuant

to 28 C.F.R. § 35 .150(d). Plaintiff s sought d

eclara tory and injunc

tive reli ef as we ll as monetar y da mages. Each side filed a motion for summary judgment on these claims.

OnFebruary

16, 2001, the district court entered an interlocutory order granting in part and de nying inpa rt th e p ar ti es ’ r es pe ct iv e m ot io ns . S pe ci fi ca ll y, the court granted summary judgment

to plaintiffs on their firs t c laim, 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 enforc ement of § 35.150(d ) and ac cordingly

grante d summary

judgmen t to defenda nts. The court also concluded that plaintiffs were not entitled to compensatory or punitive damages because such damages are not available unde r Title II absent proof of inte ntional discrimination, which plaintiffs could not show.

Defend ants filed a motion for reconsideration with the district court on April 25, 2001, pursuant to Fed. R. Civ. P. 59(e). They a rgued that the then newly dec ided 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 plainti ffs’ pos ition. The district c ourt ultima

tely disagreed with defendants and denie d their motion. On January 17, 2003, the district court entere d a final

order c ertify

ing the c lass, granting plaintiffs declaratory

and injunctive relief

on their § 35.151 claim, awarding plaintiffs attorney s’ fees, and establishing

a scheme for monitoring defendants’ compliance with the order. Defendants filed a timely appeal and

now chall enge the district court’s grant of partial summary judg

ment to plaintiffs and its denial of their motion for reconsideration, arguing tha t 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 c ourt’s grant of partial summary ju dgment to d efendants, arguing that Title I I provides them a private c ause of action for challenging defendants’ f ailure to adopt a transition plan in accordance with § 35.150(d).

II.

We review a district court’s grant of partia l summary

judgmen t de novo
, Campbell

v. Potash Corp. of Saskatchewa n, Inc. , 238 F.3d 792, 797 (6th Cir. 2001), as we do a district court’s denial of a motionNos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 3

3 Fac ilities include road s and walks. 2 8 C .F.R. § 35.1 04.

4 The parties and th e dis tri ct c ou rt c harac ter ized the defen dants ’ f ail ure t o meet the requi rement s of § 35.151 as a for

m of dispa rate impact discriminat ion. It is not clear that

this charact erization i s apt. The Second C ircuit has held that, under Title II, “a claim o f discrim inatio n based on a fai lur e reas onably to ac commodate is dis ti nct from a cla im of

dis cri mination ba sed on dispa rate impact. ” Hen rietta D. v. Bloo mb erg , 331 F.3d 261 , 276 -77 (2 d C ir. 200 3); see als o Lee v. Cit y of Los Angeles , 250 F. 3d 668, 690 -91 (9th Cir. 2001) (stating that Titl e II of the ADA “not only prohibits publi c entiti es from discriminat ing against the disa bled, it al so pr ohi bit s pu bli c en ti ti es f rom excl uding the di sabled from participati ng in or bene fi tt in g f rom a publ ic prog ram, activit y, or servi ce solely by reas on of disabilit y”) (quotation omitt ed). We need not de cide h ow vio lations o f § 35 .151 should be ch aracte rized beca use it is unne cessa ry to the re solutio n of this ap pea l.

5 Aside from se eking re lief for disa bility discrim ination b y filing a lawsu it, a privat e party has the option of fi ling a complaint of disab ility discrimin ation w ith the ap pro priate feder al agen cy, 28 C.F.R . § 35 .170 , which sh all then invest igate the complaint and attemp t to ob tain co mplia nce fro m an o ffende r if it finds that disc rimina tion ha s occ urred

. Id . §§ 3 5.17 2 – .1 74.

6 The iss ue of whet

her a pri vate cau se of action exi sts under Titl e I I f or monetary

reli ef absen t evi dence of i ntent ional discrim inatio n is not be fore us. The dis tri ct c ourt reje cted plai nti ff

s’ reques t f

or monet ary rel ief

becaus e th ey f

ail ed to of

fe r evidence of intent ional discri mination, and plaint iff s do not appeal this rul ing. seekingreconsideration of a grant of summar y judgment. Northland I

ns. Co. v. Stewart Title Guar. Co.
, 327 F.3d 448, 454-55 (6th Cir. 2003).

A.

Ti tle II of th e ADA states that “no qualified individual with a disability shall, by reason of

such di sa bi li ty, be excluded from participation in or be denied the benefits of the services, prog rams, or activities of a public entity, or

be subjec ted to disc

rimination by

any such enti ty. ” § 202, 42U.S.C. § 12132. “ Public
en ti ty” includes “any

state or l ocal governmen t” and “a ny d epartme nt, age ncy , specia

l 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 Gene ral adopted 28 C.F.R. § 35.151, which provides that alterations of facilities 3 commenced after January 26, 1992, “by, on beha

lf of, or for the use of a

public entity in a manner that a

ffects or could affect the usability of the facility or pa

rt of the fac ility

shall, to the maximum extent feasible, be a lteredin such ma nner tha t the alte red port ion of the

facility is readil y access ible and usable by

individua ls with disabilities.” Id . § 35.151(b). The regulation further spec ifies that alterations should

meet ce rtain accessibility standar

ds, id. § 35.151(c), and that altered streets and pede strian
wa lk wa ys must contain curb ramps. Id . § 35.151(e). Section 35.151 is part of a broader regula tory 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 inac c essible to or unusable byindividuals with disabilities , be excluded from participation in, or be denie d the bene fits of the service s, progra ms, or activities of a

publi c entity, or be subjec ted to discrimination by any public entity.” Id

. § 35.149 (emphasis added).

Defend ants do not dispute the districtcourt’s finding that they failed to comply with § 35.151, 4 nor do they assault the re asonableness or validity of the regul ation or of Title II more generally . Rather, they argue only

that – in light of Sandoval

– the ADA provides a private cause of ac tion under Title II

solely for claims based on intentional discrimination. 5 Since the district court found that they did not intenti onally discriminate against plaintif fs, 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’ arg ument.
Title II stipulates that “[t]he

remedie s, proce dures, a

nd right s set fort

h in [§ 505 of the Rehabilitation Act, 29 U.S.C. § 794a,] shall be the remed ies, proc edures, and rig

hts this subc

hapter provides t

o any person alleging discrimin ation on the basis of

disability in violation of section 12132 of this title.”

§ 203, 42 U .S.C.Nos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 4

7 Secti on 50 5 actu all y of fer s t wo set s of

remedi es, “one f

or empl oyment

dis cri mination ( § 794a(a) (1)) , an d one f or discrimina ti on by enti ties providin g federal assi stance (§ 794a(a)(2)) .” Johnson v. Cit y of Saline , 151 F.3d 56 4, 573 (6th Cir. 1998). As this court

explained in Johnson , the rem edies enum erated at § 794 a(a)(2) ap ply in Title II cases. Id .; see als o Barnes

v. Gorman , 536 U.S. 181, 189 n.3 (2002) (recognizing that t he remedies, procedures, and rights avai lable under § 794a(a)(2) are those availab le und er T itle II); Olmst ead v. L.C. , 527 U.S. 581 , 590 n.4 (1999 ) (same).

8 The Court expres sly

limi ted it s inqui ry t o whether the re gulat ion in

questi on could be enf

orced thr ough a priv ate caus e of action . The Co urt note d:

We do not inqui re here wh ether the DOJ regulation was a uthori zed by § 602

. . . . The petition f or writ of cert iorari rai sed, and we a greed to re view, only the question p osed in the first para grap h of this opin ion: wh ether the re is a pr ivate cause of action to enf

orce the regulati on.

Sandoval
, 532 U .S. at 279. Indeed, the Court ass umed the regula tion at issue was va lid. Id . at 282. Li kewi se, we as sume 28 C.F.R . § 35 .151 is a validly e nacte d reg ulation. See al so Olmst ead , 527 U.S. at 592 (discussing Titl e II regulati ons and noting that “[w]e recite the se regu lations w ith the cav eat that w e do not he re de termin e their va lidity”). § 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 sho rt, the re medies, procedu res, and rig

hts available under Title II of the ADA parallel those available under Title VI of the Civi l Rights Act of 1964.

In Sandoval , the Supreme Court addressed

the scope of private causes of action ava ilable under § 601 of Title VI, which provides that “[n]o person in the United States shall, on the gr ou nd of race, color, or national origin, be excluded from participation in, be denied the benef its of, or be subjected to discrimination under any prog ram or activity re ceiving Federal financ ial assistance.” 42 U.S.C. § 2000d. T h e case involved a regu lation promu lgated und er Title V I by the Unite d States De

partmen t of Justice

pursuant to § 602, 42 U.S.C. § 2000d -1, that prohibited recipients of federal funding f rom “utiliz[ing] criteria or methods of

administration which have the effect of subjecting individua ls to discr imination b ecause

of their race, color, or national origin.” 28 C.F.R. § 42.104(b)(2) (2000). T he plaint iffs cla imed that t

he Alaba ma Department

of Public Safety – a

recipie nt of fed eral fu nds – viola

ted the r egulat ion by administe

ring sta te driver’s license exam s only in E nglish, w hich it did i

n accor dance w ith an ame

ndment to the Alaba

ma constitution that declared English as the state’s official lang uage.
The Court considered whether the plaintiffs could, as private par ties, proce ed on the ir dispar ate impact claim and secure injunctive relief. 8 The Court began by noting that “p rivate r

ights 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 Cong

ress’s intent to creat e such a cause of action. Id. The Court recognized that it had already determined

that Cong

ress inte nded that private individua

ls be able to sue to enforce § 601 and ob tain both injunctive relief and

damages. Id . at 279. Yet, § 601 prohibits only intentional discrimination. Id . at 280. Sin ce “[a] Congress that intends [a] statute to be enforced through a private c ause of action intends the authori tative in terpretation of the statute to be enforced as we ll,” the Court found that any Title VI regulations properly e ffectuating § 601’s ban on intentiona

l discrimin

ation wou ld be enf orceab le throu gh the private

cause of action a vailable under tha

t provis ion. Id . at 28 4. However, the Court proceeded, as § 601 does not

itself prohibit actions that disparately impact racial groups, related reg ulations that proscribe dispara te impacts – such as 28 C.F.R. § 42.104(b)(2) – do not simply a pply the prov ision. Sandoval
, 532 U.S. at 285. Hence, the private cause of action available for e nforcing § 601 does not extend to such regula tions. Id . If

a private cause of action existed to enforce 28 C.F.R. § 42.104(b) (2), the Court reasoned, it could only origina

te from § 602, the provision of Title VI pursuant to whichthe regulation was adopted. Sandoval
, 532 U.S. at 286. Ultimately, the Court concluded tha t there was no indication in Title VI that Congre ss intended

§ 602 inde

pendentl y to provide for a pr

ivate ca use of ac tion and, t herefore, that

no privat e cause of action existed

for enforcing the disparate impac t prohibitions of § 42.104(b)(2). Sandoval , 532 U.S. at 288-93.Nos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 5

9 Bec ause “priva te rights o f action to enforce federal law must be create d by Congress, ” Sandoval , 532 U.S. at 286, the f

act that 28 C .F.R. § 35.1 72 sta tes that a p rivate partywho has fil ed a disabi lit y dis crimi nati on complaint with the appropri ate agen cy may “at any t ime . . . fil e a private suit pursuant to secti on 203 o f the [ADA]” does not authoritati vely demonstrate that Title II regu lat ions are e nfor ceabl e th rough a pri vate caus e of a cti on. Furth ermore , by st ati ng that priv ate sui ts may be fil ed “pursuant to section 203,” the regulat ion merely begs the questi on of what types of priv ate sui ts may be f

il ed under

tha t prov isi on, aquest ion we ad dress here. What Sandoval

makes cl ear is tha

t a priva te plainti ff cann

ot enfor ce a re gulation throug

h a priva te cause of action g eneral ly a

vailable under the

controlli ng statu te 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 e ffectuates the express mandates of the controlling statute, then the regulation may be enforced via the pri vate cause of action available under tha t statute. Id . at 284. For example, if a statutory provision

prohibits only

intentiona

l dis criminat ion, as was the case in Sandoval , regulations adopted to effectuate the

provision may be enfor ceable through its privat e cause of action only

to the extent that they, too, prohibit intentional discrimination.

The Court has recognized that § 202 of Title II, 42U.S.C. § 121 32, is enf orceab le throug

h a priva te
cause of action. Barnes v. Gorman , 536 U.S. 1 81, 184-8 5 (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 c ause of action, it adopts the

remedia l scheme of Title V

I of t he Civil Rig

hts Act of 1964, under which there is an implied private cause of action.”). Th

is private right of action exists under § 203 of Title I I, 42 U.S.C. § 12133, and derives from the fact

that § 203 ul ti mat ely a dop ts th e re med ies , pr oce dur es, and rig ht s s et f ort h i n Ti tl e VI, which, as noted, is itself e nforce able through a private cause of ac tion. Barnes , 536 U.S. a

t 185. Plain

tiffs’ claims are based upon d efendants’ 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 e

nforce able through Title II ’s private cause of action, then, depends on whether the reg ulation effectuates a mandate of § 202. 9 If the architec tural requirements imposed on public entities by § 35.151 effectuatea mandat

e of § 202 , then the

regula tion is enf orceab le throug

h the priv ate cau se of action avai lable under Title II. On

the other hand, if t he reg ulation’s archite ctural r

equirements imposeunique obligations
onpublic en

tities not c ontempla

ted by § 202, the

n the reg ulation is n

ot enfor ceable through Title II’s private cause of action.

We find that 28 C.F.R. § 35.151 effectuates a mandat e of Tit le II and is t herefo re enfo rceabl e thro ugh the private cause of action availab le under the statute. Title II does more than prohibit public entities from intentiona

lly d iscriminating agains

t disabled indi viduals. I

t also req uires tha t public e ntities ma ke reas onable accommodations for disa

bled individuals so a s not to deprive them of me aningf

ul acce ss to the benefits of the service s such ent

ities prov ide. More over, Tit

le II contempl ates that suc h accommodations m ust sometimes come in the form of public entities removing architectura l ba rriers that impede disabled individuals from securing the benefits of public services.

The Supreme C ourt prov

ided cons iderabl e guida

nce on the se matters in its recent decision in Lane

. Inthe context of deciding that – to the e xtent th at it requires public entities to provide qualified disabled individua ls meaning ful acc ess to cou rthouses – Title I I doe s not viola

te the E leventh Amendment by impermiss ibly

abrogating state sovereig n immunity, the Court described the purpos e of Title II and the nature o f the obligations it creates : Recognizingthat fail

ure to ac commodat

e person s with

disabilities will often have the same practic al ef

fect as outrigh t exclusion, Congre ss requir ed the Sta

tes to take

reasona ble
measures to remove architectural and other barriers to accessibility. 42 U.S.C. § 12131(2). But Tit le II does not require States to employ any and all means to make judicial services
access ible to person s with disa bilities, a nd it does not re quire Sta

tes to comp

romise the ir essential eligibil ity

criteria for public programs. I t requires only

“reasonable mod

ifications” th at wou ld not fundamentally alter the nature of the service provided, and only when theNos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 6

individual seeking

modifica tion is othe

rwise el i gible for the service. Ibid

. As Title II’s implementing

regulations make clear, the reasonable modificat io n requirement can be satisfied in a num ber of ways. In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessi bility standards. 28 C.F.R. § 35.151 (2003).

Lane , 124 S.Ct. at

1993 (emphasis added). Jus tice Gins burg, in concurr ence, noted that

“Congr ess’ objective in enact

ing the A merican s with Disa

bilities Ac

t [was] the elimination or reduction of physica l and social structur

es that imp ede peo

ple with some present, past, or percei ved im pairm ents f

rom co ntrib utin g, according to their talents, to our Nation’s social, economic, and c i vic life.” Id . at 1996 (Ginsburg, J., concurring). Justice Gin sburg c ontinued, “Congr ess under stood in shapi ng the A

DA [that it] w ould sometimes require not blind folded equality, but re sponsiveness to difference; not indifference, but accommodation.” Id . The clear implication of Lane is th at T it le II mandates not only that public entities refra infrom intentionally discriminating a gainst d

isabled in

dividuals but that the

y a lso make c ertain accommodations to the disabled in the course of providing public services, which should include removing architectural barriers in the manner pr escribed by

28 C.F.R. § 35.151.

The Court also indicated that Title II targets more than intentiona l discriminat ion in Olmstead v. L.C. , 527 U.S. 581 (1999). Although it did not fully define the bounds of discrimination under the ADA, the Courtstated that Congress advanced “a more comprehensive view of the conc ept of discrimination” in Title II than one limited to the traditionally recog nizedcateg orie s of intentional and disparate impact discrimination. Id . at 598 . Together, t hes e ca ses st ron gly i nt im ate th at T it le II, as o ppo sed to Tit le V I,
concerns more than intentional discrimination. In fact, by citing 28 C.F.R. § 35.151 in Lane as an exemplar of the type of re quirements Title II imposes, the Court suggested that it is precisely the type of re gulation tha t effect

uates the ma ndate s of Ti tle II, whi ch in t urn su ggests t hat th e regula tion is enf orceab le thr ough Title II ’s private cause of action.

Inascertaining whether 28 C.F.R. § 35.151 effectuates the mandatesof Title I I, it a lso is helpf

ul to consider the scope of the Rehabilitation Act, because the ADA and the Rehabilitation Act “are quite similar i npurpose and scope.” McPherson v. Mich. High Sch. Athletic Ass’n, Inc. , 119 F.3d 453, 4 59 (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”). I ndeed, 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 di sa bi li ty i n the United States . . . shall, solely by reason of her or his disability , be excluded fro m the participation in, be denied the benefits of, or be subjected to discrimination under an y program or activity rec eiving Federal financial a ssistance . . . .”), with 42 U. S.C. § 12132(“[N ]o qualified individual with a disability shall, by reason of such disability, be excluded from par ticipation in or be denied the bene fits of the

service s, pr og ra ms , o r a ct iv it ie s o f a pu bl ic en ti ty, or be subjected to discrimination by any such entity.”). I

n light of these similarities, we have held that “[t]he analysis of cla ims 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 a re instructive in construing the other.” Andrews v

. Ohio , 104 F.3d 803, 807 (6th Cir. 1997); see also Roge rs v. Dep ’t of Heal

th & Envtl. Control
, 174 F.3d 431, 434 (4th Cir. 1999) (“Relevant Rehabilitation Act precedent . . . may inform our understanding of what [Title II ] requires.”).

In Alexand

er v. Choa te , 469 U.S. 28 7 (1985), the Supre me Court c onsidere d whethe r private litigant s could present a disparate impact claim under § 504 of the Rehabilitation Act to challenge the State of Tennessee’s decisionto reduce the number of day s of inpatient hospital care it covered annually per patient under its state Medicaid program. The Court assumed without deciding that certain disparate impacts ar e actiona ble under § 5 04. 469 U. S. at 299. I n making this assumption, the Court noted that the Rehabilitation Act was motivated by Cong

ress’s determination that “[d]iscrimination against the handicapped . . . [is] mostNos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 7

often the product, not of invidious animus, but rather of thoughtlessness and indiff erence – of ben ign neglect.” Id . at 295. T

he Court f

urther noted that

muchof 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 pro scrib e only conduct fueled by a discriminatory

inte nt. For exa mple, elimination of architectural barriers was one of the central aims of the Act, yet such ba rriers were clearly not erected with the aim or intent of excluding the handicapped

. Id

. at 296-97(emphas is added and citations omitted). What the Rehabilitation Act ultimately requires, the Courtdetermined, was that othe rwise qua lified dis abled ind

ividuals“be prov

ided with meaning ful acc ess to the benefit that the grantee offe rs.” Id . at 301. Because Tennessee’ s decision t o re duce its support for inpatient hospital care did not deprive qualified disabled individuals of meaningful a c cess t o 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 wa ys. First, be cause T itle II

has aims similar to those of the Rehabilitation Act and the two s tatutes a re construed similarly, Choate demonstrates that Title II is not simply a prohibi tion aga inst intent ional disc rim i nation. Second, the implication of Choate is th at T it le II prohibits public entities from denying, even unintentio

nally , qualifie d disable d individua ls meaningful acces s to the services or benefits they provide. In fact, by

noting that the “eliminationof architectural barriers was
one of the ce

ntral aim s of the Ac

t” even though “such barriers we re clearly not e

rected with the aim or intent of excluding the handicapped,” id. at 297, it suggests that the conduct at issue h ere – de fendant s’ failure to provide plaintiffs certain architectural acc ommodations – is actionable under Title II even when not intentional.

Most importantly, our conclusion is supported by the text of Title II. Title I I and t he ADA more broadly were mot

ived in pa rt by Congre ss’s findi

ng that, in addition

to “outr ight inten tional exclusion,” individuals with disabilities also suffer from indirect forms of discrimination, such as “the discriminatory effects of architectural, transportation, and commu nica tion b arri ers, . . . [a

nd] failure to make modifications to existing facilities .” 42 U.S.C. § 12101(a)(5) (emphasis added). Congre ss stated that the purpose of the ADAwas to eli

minate suc

h discrimi nation, in part by using its power “to enforce

the fourteenth amendment and to regu late commerce [] in order to a ddressthe major areas of discr imination f

aced da y- to-day by p eople with disabilities.” Id . § 12101(b)(1) & (4). Such langua ge shows that Congress, aside from mere ly hoping to curtail intentional discrimination against the disabled, aimed to improve the quality of the lives of the disabled by r equiring that public

entities –

as well a s other e

ntities sub

ject to the

Act’s re quir eme nts – eliminate barriers to phy sical access, including barriers inher ent in existing facilities.

Title II itself carries this mandate. Section 202 re ads: “[N]o qualifie d individua l with a dis ability shall, by reason of

su ch di sa bi li ty, be exclude d from pa rticipat ion in or be

denied the benef

its of the s ervice s, progra ms, or activities of a public entity, or be subjected to discrimination by any such enti ty. ” 42 U.S.C. § 12132. By

separa tely identify ing as r equirements of public entities that they not deny qualified disabled individua ls the benefits of public services an d that they not discriminate ag ainst such individuals, the provision demands more of pu blic entit ies than s imply

refraining from

intentiona

lly d iscrimina ting ag ainst disabled individuals. See Hen riett a D. v. Bloomber

g , 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 benefit s’ of public services.”) (quoting 42 U.S.C. § 1 2132); see also Olmstead , 527 U.S. a t 600 (sta ting tha t, with § 202 , “C ong res s no t o nl y req ui red all pub li c en ti ti es t o re fra in fro m d is cri mi nat io n”) . In stating that public entities shall not deny qualified disabled individuals the benefits of public services, § 202 nece ssarily requires that

public en tities provide such

individua ls the mea ns neces sary

to acquir e acce ss to these

service s.Nos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 8

10 Th e regu lations d efine “fac ility” as includ ing “roa ds, wa lks, [and ] park ing lots.” 2 8 C .F.R. § 39.1 03. Title II de fines “q

ualified individua

l with a dis ability

” in this ma

nner:
The term “qualified individual with a disability” meansan individual with a disability who, with or without

reasonable modifica

tions t o rules, policies, or practices, the removal of architectural
, communication, or transportation barriers , or the provision of auxiliary aids and services, meets the essential eligibility requirem ents for the receipt of services or the participation in programs or activities provided by a public entity. § 201, 42 U.S.C. § 12131(2) (emphas is added) . Read tog ether wi th § 202, thi s definiti on illustra tes that T itle II imposes affirmative obligations on p ublic entit ies and does not merely require them to refrain from intenti onally

discriminating against the disabled. Section 202 dictates that a qualified individual with a disability may not be den

ied the be nefits of public se rvices by a

public en tity because of

her disability. A person w ith an amb ulatory disability who would be eligible for public services but for publicly imposed architecturalimpediments to the receipt of such services is a qualified individual wi th a d is ab il it y. 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. Howeve

r, 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 i s, if a disab led in divi dual w ould be eli gi ble for the r eceipt o f certa

in public s ervice s if
arc hitec tural barriers were removed, he is a qua lified individual with a disability. See § 201, 42 U .S.C. § 12131(2). In tur

n, a public

entity may not deny

this person the benefits of these public services, see § 202, 42 U.S.C. § 121 32, which are only being d enied tohim beca

use of ar chitectu ral bar riers. H ence, to

avoid denying the indivi dua l of the benefits of the public services at issue, the public entity must remove the impeding architectural barriers. This illustration makes cl ear tha

t Title I I de mands tha

t, in cer tain instance s, public entities t

ake aff irmative actions to

provide qua lified dis abled ind ividuals w

ith acce ss to public services.

Other portions of Title II

make clear that 28 C.F.R. § 35.151 imposes require ments spe cifical ly envisioned by the statute. F or instance, Title II states that, with respect to regulations that affect program
access ibility

and existing facilities, “such regulations shall be consistent with reg ulations and analysis as

in [28 C.F.R. § 39.101 et seq. ], applica ble to federally

conducted activities under [§ 504 of the Rehabilitation Act].” See § 204, 42 U.S.C. § 12134(b). As a regulation falling under Subpar t D of part 35 of title 28 of the Code of F ederal

Regula ti ons, a s ubpart entitled “Program Accessibility,” 28 C.F.R. § 35.151 is by def inition 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 se q. are regulations e nsuring that, in c onforma

nce with § 504 of the

Rehabilit

ati on Act, the di sabled have access to progra ms and activities conducted by the Department

of Justice. Generall y, the reg ulations require the Department of Justice to “operate eac h program or activity so that

the program or activity , when viewed in its entirety, is rea dily acce ssible to and usable by handicappe d 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), th e clear

implication is that it w

ill sometimes

be nece ssary

to alter a facility to comply

with the regulation. 10 Inde ed, “alt eration of existing

facilitie s” is one method ava ilable under the

regula tion to achieve compliance with its terms. Id . § 39.150(b). When the agency alters an existing building or part of

anexisting 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

regula tions promu

lgated infurther ance of its program accessibility objectives be consistent with 28 C.F.R. § 39.101 e t seq ., Title I I ne cessar

ily contemplates that such regulations will, akin to 28 C.F.R. § 39.151, require that fac ilities alt

ered by public entities be made accessible to disabled individuals in the process. As a prog ram accessibility r

egulation, 28 C.F.R. § 35.151 directly meets this mandate.Nos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 9

Elsewhere, Title II

indicates that it seeks to impose the very architectural requirements enumera ted

a t§ 35.151. Specifically, the statute pr ovides that regulations adopted to effectuate § 202 “ shall include standards applicabl

e to f acilities ” and that “[s]uch standards shall be consistent with the minimum guidelines and requ

irements issued by the Arch itectura l and Tra nsportat ion Bar riers Com pliance Board i n accordancewith [42 U.S.C. § 12204(a)].” § 204, 42 U. S.C. § 12134 (c) (e mphasis a

dded). 4 2 U.S.C. § 12204(a ), in turn, directs the Compliance Board to adopt minimum guidelines that supplement the existing Minimum Guidelines and Requirements for

Access ible Desi gn, whic

h are loc ated at 3 6 C.F.R. §§ 1190.1

– .60. The Minimum Guidelines require that altered facilities, wh ich include r oads and walks, 36C.F.R. § 1190.3, shall meet accessibility standa rds. See id. § 1190.33. So that its a ims are achieved, T it le II mandates that, in addition to these minimum guidelines, the Compliance Board “ shall establish additional requirem ents . . . to ensure that buildings [and] facilities . . . are ac cessible, in terms of architecture and design . . . to individuals with disabilities.” 42 U.S.C. § 12204(b) (emphasis added). By mandati ng the adop tion of the foregoing reg ulations, Congress intended that Title II serve as a mechanism for imposing affirmative architecturalstandards on public entities and that meeting such standards would be required of public entities to conform with the dicta tes of § 20 2, partic

ularly when publ ic entitie s alter existing fa cilities.

The legislative history of Title I I supports the notion

that 28 C.F .R. § 35.15 1 effectuates a n express mandate of Title II and, hence, should be e

nforce able by

the priva te cause of action availa

ble und er T it le II. Infact, this history indicates that Cong ress intended for Title II

to require of public entities that they make
some of the very

accommoda

tions require d by 28 C.F.R. § 35.151. For e xample, the House Report that accompanied

the ADA state s that, “u

nder [Title

II ], local an

d state g overnme

nts arerequired

to provide

curb cuts on public stre

ets .” 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 employ

ment, transportation, and public accommodation sections of this Act would be meaningless if people who use whee lchairs were not afford ed the opp ortunity to travel on and between the streets.” Id . Perhap s most instr uctive is an indicationthat Congress’s intention was that the private cause of action available under Title I I extend to the enforcement of its regulations as well, insofar as a violation of a regulation resulted in a de nial of acce ss. The Repor t states that the re

medies, 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. a t 185 – “sha

ll be ava ilablewith respect

to any individual who believes that he or she is being subjected t o discrimination on the basis of a disability in violation of any provisions of [Title II], or regulations promulgated under section 204
, concer ning pub lic service s.” H.R. Rep. No. 101-485, pt. 2, at 98 (1990), reprinted in 1990 U.S.C. C.A.N. 303 , 381 (emp hasis added). Being
one suchregula

tion the vio lation of w

hich impa cts disab led individ

uals’ ac cess to public s ervice s, Congr ess intended that 28 C.F.R. § 35.151 be enforceable throug h Title II ’s private cause of action.

Case law as we ll supports our dete rmination s that Title

II reache s bey

ond prohib iting mer

ely intentional discrimination and that 28 C.F .R. § 35.15 1 is a reg ulation tha

t enforc es Title I

I’s a dditional a

ims. In Chaffin v. K

ansas State

Fair Board

, the Ten th Circuit held that – Sandoval notwithsta nding – the privat

e cause of action under Title II

was available to enforce acce ssibility regulations adopted in fur therance of

the Act because the requ irements impo se d b y the regulations fell within the scope of the requireme nts and prohibitions of

Title II . 348 F.3d 850, 857-60 (10th Cir. 2003). The cou rt ex press ly noted t hat, “ altho ugh the conduct r

egulat ed by [Title VI] is l imited to in

tentiona l discrimin

ation, Con

gresssought with § 504 [of the Rehabilit

ation Act ] – and cons equently

with Title II of the ADA – to remedy a broad, comprehensive concept of discrimination against individuals with disabilities.” Id . at 859-6 0 (citati on omitted) ; see also Thompson v. Colorado , 278 F.3d 1020, 1028 (10th Cir. 2001) (“[R]ather than preventing public entities from treating t he disabl ed diffe rently than the n

ondisable d, Title I

I re quires that public

entities make cer

ta i n accommodations for the disabled in order to ensure their acc ess to government programs.”). Excluding the opinion on appeal, three district court opinions havealso conc luded tha t ADA reg

ulations a re enforceabl e by Title II’s private c ause of a cti on because they

effectuate the mandates of Title I I. See Nat’l Org. on Disability v. Tartaglione , No. Civ. A. 01-1923, 2001 WL 1231717, at *6 (E.D. Pa. 20 01) (fin ding that 28 C.F.R. § 35 .151 – the provision

at i s sue here – could be enforced throug h Title II ’s private cause of action) ; Frederick L. v. Dep’t of P ub. W elfare , 157 F. Supp. 2d

509, 538-39 (E.D. Pa. 2001) (finding thatNos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 10

11 Plai ntiffs do n ot argu e that § 204 of T itle II, 42 U.S .C. § 1 213 4, whic h gran ts the Atto rney G enera l the autho rity to pro mulga te regula tions in furth eranc e of T itle II, inde pendent ly creat es a pr ivat e caus e of a cti on th rough whi ch § 35. 150(d) may be en force d. T herefo re, we n eed not ad dress this issue. private plaintiff s could pr esent cl aims base d on violat ions of AD A regu

lations tha

t prohibit dispara

te impa cts and require integr ated set tings); Access L iving v. Ch icago Tran sit Auth. , No. 00 C 0770, 2001 WL 492473, at *6 (N.D. Ill. 2 001) (fi

nding tha t discrimin

ation unde

r TitleII includes failure to make accommodations for the disabled and that plaintiffs could enforce regulations th at c lar ifi ed t hi s t ype o f di scr im in ati on) . In Tartaglione
, the cour

t noted tha

t, with § 204, Congress mandated that regulations be adopted t o enforc e Title II ’s prohibition of discrimination and that suchregula tions shoul d

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 “virtua lly i dentica

l” to these Rehabilitation Act regulations, the court concluded that Congre ss intende d that § 35. 151 be enforcea ble throu gh Title II ’s priva te cause of action. Tartaglione
, 2001 WL 1231717, at *6.

Inconclusi on, § 202 of

Title II does not merely prohibit intentional discrimination. It also imposes
onpublic entities the requirement that they provide q

ualified disabled individua

ls with mea

ningful access to public services, which in certain instances nece ssitates that public entities take affirmat ive s teps to remove architecturalbarrie

rs to such access in th e proce ss of alte

ring exis ting fa

cilities. 28 C.F.R. § 35.151 is a regulation

adopted by

the Attorney Gene

ral at Title II ’s express direction that effectuates this aim. As such, the re gulation is enforceable through Title I I’s private cause

of action available under § 203. Therefore , plaintiffs do have a

private cause of action a gainst d efenda nts for fa iling to c omply

with 28 C.F.R. § 35.151, and we affirm the judgment of the district court on this issue.

B.
Plaintiffs argue

that the d

istrict c ourt err

ed in fai ling to f

ind that 2 8 C.F.R. § 35.15 0(d) is a lso enforc eable

throu gh Title II ’s private cause of action. They seem to suggest that, since Title I I does more thanprohibit intentional di scrimina tion, Sandoval is wholly inapplicable. This assertion is untenable. Alth ough the differences between Title I I of the ADA and Title VI

of the Civil Rights Act of 1964 mean that the outcome in Sandoval does not necessarily

dictate the o utc ome in this case, the analy tical framework provided in Sandoval for

determining whether a reg ulation 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 I I or imposes unique ob ligation s on pub li c en ti ti es. If § 35.1 50(d) impo ses ob ligat ions not ex plici tly cont empla ted by Tit le II, then i t is n ot enf orceab le thr ough the Act’s private cause of action.

Sectio n 35.15 0(d)(1) provides that, “[i]n the event that structural changes to fa cilities will be undertaken

to achie ve prog ram acc essibility

, a public entity that employs 50 or more per sons shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes.”The provision

specific ally

require s of a publ ic entity that exerc ises cont

rol over streets t hat “its transition plan shall include a schedule for providing curb r amps or o ther slo ped areas where pedestrian walks cross curbs.” Id . § 35.150(d)(2). The distr ict cour t conclud ed th at, although defendants violated § 35.150(d), it is not enforceable through the private c ause of action available under Title I I.

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 reg ulation are therefore actionable unde r tha t provision’s private cause of action. 11 While f a iling to provide curb cuts and other accommodations in the course of alteringcity

streets a nd sidewa

lks in viola

tion of § 35 .151 deni es the dis abled me aningf ul acce ss to public services by perpetua

ting architectural barriers that impede suchaccess, failing to develop a transition plan inviolation of § 35.150(d) does not in and of itself similarly hi nder the d isabled. Section 35.150(d) may create a procedural requirement that enc ourag es public

entities t o conside r and pla n ways in which the

y willNos. 03-3277/3339 Ability Ce nter et al. v. City of S

andusky et al. Page 11

accommo date the disabled, and it may ultimately facilitate compliance wi th T itle II , but there is no indication that a public e

ntity ’s failur

e to deve lop a tra

nsition pla

n harms disabled

individuals, let alone in a way that Title II aims to prevent or redress. I ndeed, it is conceivable that a public entity could f ul ly satisfy

its obligations to accommodate the disabled while at the same time fail to put forth a suitable transition plan.

Bolsteringour

con clu si on i s t he f

act th at p lai nt iff

s of fer no a rgu men t t hat Tit le II expressly imposes

anobligation on

public entities to develop transition plans. Plaintiffs’ best potential argument for an implied obligat io n mightbe that, by ma

ndating the adopt

ion of pro gram a

ccessib ility

regula tions cons istent with Rehabilitation Act regulations found at 28 C.F.R. § 39.101 et seq. , see 42 U .S .C . § 1 213 4(a )-( b), Tit le II does contempl ate that p

ublic ent ities are require d to adopt t

ransition plans. 28 C.F.R. § 39.150(d) does specific ally

order the Department

of Justice to adopta transit ion plan be fore str

uctural ly a

ltering a facili ty under its control to make it accessible to the disabled. The argument would be tha t, with 42 U.S.C. § 12134, Congre ss intend ed to impose the same r equirement on pub lic entitie s throug h Title I I an d that 28 C. F.R. § 35.150(d) is the actualization of this intent

. Hence, the arg ument wou

ld continu

e, Title I I doe s obliga

te public entities t

o adopt tr ansition p lans, alb eit indire ctl y , and § 35. 150(d) – w hich mer ely effectuates thi s obligation – is enforceable through its private c ause of action.

We do not find this argument persuasive. I f we concluded that § 35.1 50(d) is privately enforc eable
onthe basis that Title II

contemplates transition

plans because it references Reha bilitation Act reg

ulations, it would follow that all Rehabilitation Act regulations incorporated th rou gh T it le II would be e nforce able throu gh private causes of action, rega rdless of w hethe r they ar e even privately

enforceable under the Rehabilitation Act and regardless of whether Title II

indicated in any other

way that it intende d to impose the obligation or prohibit the conduct at issue. Perhaps § 35.150(d) would be enfor ceable through Title II’s private cause of action if there we re a stro nger, more explic it indicat ion from the statute

itself tha t Congre ss viewed the creation of transition plans as integral to the achieveme nt of the s tatute’s

aims or tha

t Congre ss consi dered

a publi c entity’s failure to adopt such a plan as a form of discrimination against disabled individua ls or as a f

ailure to provide t

hem with me aningf

ul acce ss t o 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, i t creates obligations not necessarily required by § 202 and, there fore, it is not enforceable under Title I I’s private cause of action. See Sandoval , 532 U.S. a t 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 enfor ce the self-evaluation

and transition plan require ments set forth

in the re gulations acc ompany ing Title II .”); Matthews v. Jefferson , 29 F. Supp. 2d 525, 539-40 (W.D. Ark . 1998) (f inding that the mer

e failur e to adopt

a transi tion plan in accord

ance wi th § 35.150(d) is not independently enf orceable).

III.

For the foregoing reasons, we affirm the district court’s grant of partial summary judg ment to plaintiff s, its denial of defendants’ motion for reconsideration, and its grant of pa rtial summary judgme

nt to defendants.