In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 18-1371 

MYCAL L. ASHBY, 

Plaintiff-Appellant, 

v.

WARRICK COUNTY SCHOOL CORPORATION, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Indiana, Evansville Division. 

No. 3:16-cv-00190-RLY-MPB — Richard L. Young, Judge. 

____________________ 

ARGUED JUNE 1, 2018 — DECIDED NOVEMBER 5, 2018 

____________________ 

Before RIPPLE, KANNE, and BRENNAN, Circuit Judges. 

RIPPLE, Circuit Judge. Mycal Ashby’s son was a member of 

his elementary school choir for several years. In both 2014 and 

2015, the choir agreed to perform a Christmas concert at a local history museum. The museum is located in a historic 

building and, at the time of both concerts, was not accessible 

to persons with disabilities. Ms. Ashby, who uses a wheelchair, therefore was unable, in both years, to attend the Christmas concert and to see her son and his schoolmates sing. She 
2 No. 18-1371 

consequently brought this action against the Warrick County 

School Corporation, alleging discrimination under the Americans with Disabilities Act (“ADA”) and the Rehabilitation 

Act. 

The parties filed cross-motions for summary judgment. 

Focusing on the language of the statute and implementing 

regulation, the district court concluded that the Christmas 

concert was not a “service, program, or activity of” the Warrick Schools.1 Nor was the concert an activity “provided or 

made available” by the School Corporation. 28 

C.F.R. § 35.102. It therefore granted Warrick Schools’ motion 

for summary judgment. Ms. Ashby appealed. 

Because resolution of the appeal turns on the proper interpretation and application of statutory and regulatory language on which we have little precedent, we invited the Department of Justice, the agency charged with the administration of the statute, to submit a brief as amicus curiae. The Department accepted our invitation and submitted a brief.2 The 

Government notes that when a public entity offers a program 

in conjunction with a private entity, the question whether a 

service, program, or activity is one “of” a public entity is a 

complicated, fact-based one. The Government’s brief suggests 

that there is a “spectrum” of possible relationships ranging 

from a “true joint endeavor” on one end to participation in a 

 

1 R.51 at 17 (emphasis added) (internal quotation marks omitted); see also

42 U.S.C. § 12132. 

2 The court expresses its thanks to the Department of Justice for having 

accepted our invitation to file a brief as amicus curiae and for having rendered assistance to the court. 
No. 18-1371 3

wholly private event on the other.3 The Department’s interpretation of its regulations is a reasonable one that offers a 

loose but practical framework that aids in decisionmaking. 

Upon close examination of the record, it is clear to us that 

the district court correctly determined that the event in question was not a service, program, or activity provided or made 

available by the Warrick County School Corporation. Accordingly, its judgment is affirmed. 

I 

A. 

Since infancy, Ms. Ashby has had transverse myelitis, a 

condition that renders her paralyzed from the chest down. 

She cannot stand or walk and relies on a motorized wheelchair for mobility. 

Ms. Ashby and her husband, Robert, have a son who attended Loge Elementary from 2011–16. He participated in the 

school choir when he was in the fourth and fifth grades, during the 2014–15 and 2015–16 school years. Ms. Ashby attended school events, and her disability was known to school 

officials. 

The Loge choir was an extracurricular activity offered by 

the school. Participation was voluntary, and students received no academic credit. The school’s music teacher, 

Abby Roach, led the choir as a volunteer; she was not compensated for the additional time that she devoted to this activity. The choir practiced weekly after school, and Roach 

sought to introduce the children to singing in an “informal” 

 

3 Gov’t Br. 12–14. 
4 No. 18-1371 

format.4 Nevertheless, the choir performed for others on a few 

occasions during the year, including during a Veteran’s Day 

program and as a part of the school’s Fine Arts Night; both of 

these events were held at Loge Elementary. The students also 

performed during the day at a local nursing home as a community service. In both of the school years in which the Ashbys’ son was a choir member, the choir also performed a 

Christmas concert at the Warrick County Museum. 

The Warrick County Museum is a local historical museum. It is not affiliated with the Warrick County School Corporation. The museum is housed in a 1901 building, and, at 

all times relevant to the present case, it had no ramp access 

and no elevator, although they have since been installed. For 

several years, the museum decorated for the holidays and 

held a series of December events to promote and fundraise on 

its own behalf. Among the holiday events were Christmas 

concerts at which local elementary school choirs performed, 

each on its own night. The museum coordinated these events 

by contacting local schools and inviting each to select from 

available dates. The museum advertised the concerts in its 

newsletters and publicized them in local media. 

The Loge choir participated in this program for a number 

of years. In fall 2014, it again received an invitation from 

Gretchen Powers, a museum volunteer and member of the 

Board, and Roach selected a date for her students to participate. The school then sent home a flyer to choir-student families and placed the event on the school calendar. The children 

 

4 R.41-1 at 1. 
No. 18-1371 5

were instructed to dress up, and the evening performance 

was open to family members and others. 

On the night of the 2014 Christmas performance, the 

Ashby family arrived at the museum and quickly discovered 

that there was no handicapped parking and no ramp up to the 

door. Mr. Ashby went up to Roach, who was standing near 

the door, and a representative of the museum, and both informed him that the museum was not accessible. Ms. Ashby 

would not be able to access the upper floor where the concert 

would be held. With little time before the program, Mr. Ashby 

drove his distraught wife to a local Wal-Mart where she 

waited while her son performed with his choir. Following the 

concert, Mr. Ashby spoke to both Roach and Lynn Pierce, the 

Loge principal, and expressed his displeasure about the inaccessibility of the concert venue. He followed up the next day 

with a call to the principal to discuss the matter. 

The choir repeated the program, in some form, at a local 

nursing home. Although the fifth grade class held its own holiday program, the choir’s only holiday performances were at 

the museum and the nursing home. 

In the fall of 2015, the museum again contacted Roach and 

sought to schedule school choirs for performances at the museum. In her initial mid-September email to schedule concerts, Powers informed the choir directors that the museum 

was “in the process of installing [an] elevator which should 

be up and running in just a few weeks.”5 By mid-October, her 

email confirming the selected dates also stated that she 

thought that she could “safely say the elevator will be 

 

5 R.36-3 at 46. 
6 No. 18-1371 

available” at the time of the concerts in December.6 In early 

December, the choir director of a different school, Stephanie Wiedrich, contacted Powers to inquire whether the elevator was operational because she was considering bringing risers for her students to stand on. Powers responded, “[n]o elevator.”7 This final exchange appears to have been between 

Powers and Wiedrich alone; no one at Loge received a copy. 

Roach and Pierce both testified that they did not follow up 

with the museum to determine whether the elevator was operational as the concert date approached. Mr. Ashby approached both Roach and Pierce in the weeks before the concert, and both informed him, incorrectly, that the museum 

was accessible. 

The 2015 concert for the Loge choir at the museum resulted in a similar situation for the Ashbys. Upon their arrival 

at the museum, they were disappointed to find that, despite 

the assurances that they had received, the concert was inaccessible to Ms. Ashby. 

B. 

Ms. Ashby brought this action against the Warrick County 

School Corporation in September 2016. She sought compensatory damages for intentional disability discrimination under Title II of the ADA and Section 504 of the Rehabilitation 

Act, alleging that the School Corporation had violated both 

statutes by allowing the Loge choir to perform at a building 

that was inaccessible to persons with disabilities. 

 

6 Id. at 50. 

7 Id. at 64. 
No. 18-1371 7

Ms. Ashby moved for partial summary judgment on the 

question of liability; the School Corporation filed a cross-motion for summary judgment. In considering the motions, the 

district court first examined whether the Christmas concert 

was a “service, program, or activity” of the Warrick Schools.8

The court acknowledged that the statute itself did not define 

the term and that courts have construed it broadly. Indeed, 

the parties were in agreement that the concert was a “service, 

program, or activity.” Their disagreement was over whether 

it was a “service, program, or activity” of the Warrick Schools. 

To resolve this second interpretive problem, the court turned 

to the regulations, which said that the statute placed responsibility on a public entity for activities that it “provided or 

made available.” 28 C.F.R. § 35.102. In the court’s view, under 

this regulation, liability attaches where the public entity 

“schedules, coordinates, and controls the particular service, 

program, or activity.”9

Applying this interpretation to the facts, the court determined that the concert was not an activity of the Warrick 

County School Corporation. It therefore granted Warrick 

Schools’ motion for summary judgment. Ms. Ashby now appeals. 

After oral argument in this case, we determined that the 

participation of the Department of Justice, the agency charged 

with the administration of the statute, would assist us in understanding the operation of the statutory and regulatory language. We therefore invited the Attorney General to file an 

amicus curiae brief. He accepted the invitation, and we are 

 

8 R.51 at 11; see also 42 U.S.C. § 12132. 

9 Id. at 14. 
8 No. 18-1371 

grateful for the assistance provided by the Department of Justice. 

II 

DISCUSSION 

The general standard governing our review of the district 

court’s decision is well-settled: We review the district court’s 

summary judgment order de novo. Oconomowoc Residential 

Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 777 (7th Cir. 

2002). Summary judgment is appropriate when no material 

fact is in dispute and the moving party is entitled to judgment 

as a matter of law. Id. Both the district court and this court 

view all facts and draw all reasonable inferences in favor of 

the nonmoving party. See id. 

“[A]fter decades of deliberation and investigation into the 

need for comprehensive legislation to address discrimination 

against persons with disabilities,” the ADA was enacted into 

law. Tennessee v. Lane, 541 U.S. 509, 516 (2004). It is designed 

“to provide a clear and comprehensive national mandate for 

the elimination of discrimination against individuals with 

disabilities.” 42 U.S.C. § 12101(b)(1). The ADA “forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of 

the statute; public services, programs, and activities, which 

are the subject of Title II; and public accommodations, which 

are covered by Title III.” Lane, 541 U.S. at 516–17. 

Ms. Ashby submits that the Warrick County School Corporation, as a public entity, violated her rights under Title II 

of the ADA. See 42 U.S.C. § 12132. That section provides in 

relevant part: 
No. 18-1371 9

[N]o qualified individual with a disability shall, 

by reason of such disability, be excluded from 

participation in or be denied the benefits of the 

services, programs, or activities of a public entity, or be subjected to discrimination by any 

such entity. 

To establish a violation of Title II, Ms. Ashby therefore must 

show that she “is a ‘qualified individual with a disability,’ that 

[s]he was denied ‘the benefits of the services, programs, or activities of a public entity’ or otherwise subjected to discrimination by such an entity, and that the denial or discrimination 

was ‘by reason of’ [her] disability.” Wagoner v. Lemmon, 778 

F.3d 586, 592 (7th Cir. 2015).10 It is undisputed that Ms. Ashby 

has a disability within the meaning of the statute. 

A.

At the heart of this case is whether the Christmas concert 

was a “service, program, or activity” of the defendant public 

entity, Warrick Schools. 

 

10 Ms. Ashby also asserts her claim under Section 504 of the Rehabilitation 

Act, 29 U.S.C. § 794. Section 504 uses nearly identical language to describe 

prohibited discriminatory acts, but its coverage is limited to “any program 

or activity receiving Federal financial assistance.” Id. § 794(a). Because of 

the similarities between the ADA and the Rehabilitation Act, our cases 

“construe and apply them in a consistent manner.” Radaszewski ex rel. 

Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004); see also Wagoner v. 

Lemmon, 778 F.3d 586, 592 (7th Cir. 2015) (noting that the standard for liability under the ADA and the Rehabilitation Act is “functionally identical,” with the additional requirement that the state agency in question 

“must accept federal funds”). Our discussion of the substantive standard 

applies to her claim asserted under both statutes, and we rely interchangeably on cases arising under either statute.
10 No. 18-1371 

Neither the statutory language nor the regulations give us 

a clear answer to our problem. Title II of the ADA does not 

define explicitly “services, programs, or activities,” Oconomowoc, 300 F.3d at 782.11 The regulations, see generally 28 

C.F.R. pt. 35, bring us a little further, but hardly to a conclusion. The regulations simply state that they apply “to all services, programs, and activities provided or made available by 

public entities,” but give no further instruction. 28 C.F.R. 

§ 35.102 (emphasis added). The preamble to the final rule, 

published as an appendix to the rule, only amplifies its reach, 

describing the statute as applying to “anything a public entity 

does.” 28 C.F.R. pt. 35, app. B; see also Oconomowoc, 300 F.3d at 

782 (citing the appendix as guidance).12 The limited case law 

interpreting the statutory term simply emphasizes the 

breadth of the ADA, and of this phrase itself. See, e.g., Bahl v. 

County of Ramsey, 695 F.3d 778, 787–88 (8th Cir. 2012).

 

11 The Rehabilitation Act defines “program or activity” as “all of the operations of” the covered entity. 29 U.S.C. § 794(b); see also Barden v. City of 

Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002) (relying on Rehabilitation 

Act definition of “program or activity” to interpret analogous ADA language); Frame v. City of Arlington, 657 F.3d 215, 225 (5th Cir. 2011) (same). 

12 The implementing regulations are issued by the Attorney General “at 

the instruction of Congress.” Wis. Cmty. Servs., Inc. v. City of Milwaukee, 

465 F.3d 737, 750–51 (7th Cir. 2006) (citing 42 U.S.C. § 12134(a)). We have 

noted that the Supreme Court never has decided whether the Attorney 

General’s regulations here are entitled to Chevron deference. Id. at 751 n.10. 

However, the Court has said that “its views warrant respect” and that the 

Attorney General’s views fall within “the well-reasoned views of the 

agencies implementing a statute” that “constitute a body of experience 

and informed judgment to which courts and litigants may properly resort 

for guidance.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597–98 (1999) 

(quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998)). 
No. 18-1371 11

Drawing on this limited guidance, the parties dispute 

whether the concerts in question were “provided or made 

available by” the schools, rather than the museum. See 28 

C.F.R. pt. 35, app. B. In the School Corporation’s view, Loge 

provided only “an opportunity for its students to provide a 

community service to the Museum and gain performance experience,” while the concert itself was provided by the museum.13 But as Ms. Ashby rightly counters, the performance 

by the Loge Elementary School was, in effect, the sole content 

to the evening. 

As our colleague in the district court correctly recognized, 

existing authority, whether it be statutory, regulatory, or case 

law, provides but a modicum of guidance on how to identify 

the responsible party when two or more entities, only one of 

which is subject to the statute, collaborate. The district court 

relied on cases concluding that city sidewalks and municipal 

court proceedings were within the meaning of the statute to 

reach its conclusion that the concerts were not.14

Before us, the School Corporation relies on a now-vacated 

decision of the Fifth Circuit, in which it held that a Texas state 

agency which certified and licensed private driver’s education programs did not itself “provide” driver’s education, and 

therefore it could not be held liable for failing to require the 

licensed entities to provide accessible services. Ivy v. Williams, 

781 F.3d 250, 256 (5th Cir. 2015), vacated and remanded sub nom. 

Ivy v. Morath, 137 S. Ct. 414 (2016). Notably, the Fifth Circuit 

 

13 Appellee’s Br. 18. 

14 See R.51 at 12–13 (citing Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931 

(N.D. Ind. 2009), and Soto v. City of Newark, 72 F. Supp. 2d 489 (D.N.J. 

1999)). 
12 No. 18-1371 

remarked that the regulations never “define what it means for 

the state to ‘provid[e]’” something, particularly in the context 

of joint involvement. Id. Although it considered the potential 

liability of the Texas state actor a “close question,” that court 

ultimately relied on a series of cases that concluded that public entities that license or regulate private entities are not liable 

for a private actor’s failure to make an event, service, or venue 

accessible, absent a contractual or agency relationship. Id. at 

255–57. 

These authorities are of very limited utility in deciding the 

case before us. We therefore begin by stating some basic principles that may, despite their generality, point the way. First, 

it is clear that a governmental entity cannot avoid its obligations under the statute by ceding its governmental functions 

to private entities.15 “The mandate of Title II ... is clear: whenever a public entity or federal funding recipient ‘does ... anything,’ it must extend ‘the benefits of,’ and cannot ‘discriminat[e]’ in, that thing on the basis of disability.”16 Accordingly, 

the question whether a particular event is a service, program, 

or activity of a public entity turns on what the public entity 

itself is doing, providing, or making available. Second, as both 

parties acknowledge, and as the Attorney General confirms, 

 

15 See Gov’t Br. 12 (stating that “the Department’s Title II regulation makes 

clear that public entities cannot evade their Title II obligations by ceding 

the provision or administration of public services, programs, or activities 

to private entities”); 28 C.F.R. § 35.130(b)(4) (“A public entity may not, in 

determining the site or location of a facility, make selections—(i) That have 

the effect of excluding individuals with disabilities from, denying them 

the benefits of, or otherwise subjecting them to discrimination.”). 

16 Gov’t Br. 11 (quoting Oconomowoc Residential Programs, Inc. v. City of 

Milwaukee, 300 F.3d 775, 782 (7th Cir. 2002), and 42 U.S.C. § 12132). 
No. 18-1371 13

the regulations specifically contemplate, in various sections, 

that liability may attach to some complicated relationships between public and private actors. For example, 28 C.F.R. 

§ 35.130(b), provides that a public entity may not discriminate, on the basis of disability, directly or indirectly, such as 

“through contractual, licensing, or other arrangements.” See 

id. § 35.130(b)(1). 

Indeed, more to the point, the Government also acknowledges that the statute is intended to cover at least some circumstances in which a public and private entity are both involved. 

Notably, however, it acknowledges, indeed it stresses, that 

the required analysis is “complicated.”17 It continues: 

One end of the spectrum is obvious: where 

the public entity and the private entity engage 

in a true joint endeavor, both entities may be responsible for complying with the ADA (and any 

federal funding recipient with Section 504) with 

respect to the entire event. Thus, in joint endeavors, both Title II and Title III of the ADA 

may be implicated: the public entity is responsible for meeting its legal obligations under Title 

II, while any private entity that qualifies as a 

public accommodation is responsible for complying with Title III.[18]

By way of example, the Department points to the regulations 

that “make[] clear that public entities cannot evade their Title II obligations by ceding the provision or administration of 

 

17 Id. at 12. 

18 Id. (emphasis in original). 
14 No. 18-1371 

public services, programs, or activities to private entities via 

‘contractual, licensing, or other arrangements.’”19 The Department also notes that when public and private entities act 

jointly, such as when a municipality and a private company 

jointly work to build a new stadium, both Title II and Title III 

may be implicated. When a public action is undertaken jointly 

with a private actor or is the result of a close relationship with 

a private actor, a public entity may remain liable under Title 

II.20

“At the other end of the spectrum,” the Government tells 

us, are cases in which “the public entity does not engage in a 

joint endeavor with the private entity, but instead participates 

in an event of the private entity.”21 In such a case, the liability 

of the public entity is limited to its own program within the 

event, but does not extend “to the entire event.”22 Here, the 

Government posits a program involving fifty school choirs 

over a three-day festival at a private venue, in which an individual school is merely one participant. The Department asserts that on these facts, no choir would be required to ensure 

that the entire festival is accessible to the audience. 

The Department’s articulation of a spectrum is persuasive 

and takes us a significant step closer to a resolution of the 

problem before us by providing at least a loose framework for 

 

19 Id. (citing 28 C.F.R. § 35.130(b)(1)). 

20 See id. at 12–13 (noting that, under the Technical Assistance Manual to 

the ADA, when public and private entities have a “close relationship,” 

“certain activities may be at least indirectly affected by both titles”). 

21 Id. at 13–14 (emphasis added). 

22 Id. at 14. 
No. 18-1371 15

decision. Furthermore, we agree with the Department that the 

present case lies between the two extremes it has delineated. 

The question still remains, however, as to where on the spectrum delineated by the Department the present situation 

should be placed. The answer to this question turns on an examination of the record. 

Having undertaken such an examination, we agree with 

our colleague in the district court that there is no dispute 

about a material issue of fact. It is also clear, even when we 

construe those facts in the light most favorable to Ms. Ashby, 

that the event was part of the museum’s own programming. 

It held a series of “holiday happenings”23 for the people of the 

community with the hope that those in attendance would be 

more supportive of the museum’s endeavors. The students of 

the School Corporation who sang at these events, and the 

teachers who accompanied them, were simply the invitees of 

the museum. The responsibility of the School Corporation, 

upon acceptance of the invitation, was limited to arranging 

for the attendance of the students and for their presentation 

of a musical program for the audience. All other matters, such 

as planning, community notification, and refreshments for 

the audience were handled by the museum as the sponsor and 

host of the events. 

The record, even charitably read for Ms. Ashby, does not 

support the conclusion that the school’s participation was in 

any way a substitution for an event that otherwise would 

have been held at the school as part of its own observance of 

the holiday season. We certainly can speculate that the individual school and, indeed, the School Corporation as a whole, 

 

23 See R.36-3 at 36. 
16 No. 18-1371 

benefitted in some way by performing at this community 

event. Although the choir was not organized to provide the 

children with an opportunity to sing before an audience, the 

children well might have derived a benefit from such an experience. Their parents also no doubt enjoyed seeing children 

perform in such a festive ambiance. Nevertheless, the record 

makes clear that these benefits were purely collateral to the 

objectives of the museum and, consequently, had to be enjoyed in that context. 

Under the statute and regulations, as they currently exist,24 the inquiry into whether a particular program involving 

private entities not subject to the statute and public entities 

subject to the statute is a “service, program, or activity” of the 

public entity is, as the Department states, a fact-intensive issue. Here, the district court properly understood the statutory 

and regulatory command and properly determined that the 

event, organized, sponsored, and maintained by the private 

museum, was not subject to the strictures of the statutes. The 

children of the School Corporation participated solely as the 

invitees of the museum.25 Accordingly, the judgment of the 

district court must be affirmed. 

Conclusion 

 

24 As judicial decisions further examine this question, the Department 

might well consider providing more precise guidance in future regulatory 

pronouncements. 

25 The parties dispute whether Ms. Ashby was an eligible participant under the statute and whether any discrimination she faced from the Warrick 

Schools was intentional. Our decision today precludes the necessity of our 

reaching these issues. 
No. 18-1371 17

For the reasons set forth above, we affirm the district 

court’s judgment in favor of the Warrick Schools. 

 AFFIRMED