F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T I M O T H Y S. D A

U B E R T , Plaintiff-Appellant
,

v

.

L I N D S A Y U N I F I E D S C H O O L D I S T R I C T , Defendant-Appellee

. N o. 12-16252

D.C. No. 1:09-cv-01463- GSA

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Gary S. Austin, Mag istrate J udg e, Presiding

Arg ued and Submitted May 15, 2014—San F rancisco, California

F iled J uly 25, 2014

B efore: M. Marg aret McKeown and Milan D. Smith, J r., Circuit J u dg es, and Susan R. B olton, District J udg e. *

O pinion by

J udg e Milan D. Smith, J r.

* T h e H o n orab le Su san R. B o l to n , Un ited States D istrict J u d g e f o r th e District o f

A rizo n a, sittin g b y

d esig n atio n

.D A U B E R T V

. L I N D S A Y USD 2

SUMMARY * *

Am ericans w ith Disabilities Act

Affirming the district court’s g rant of summary judg ment to the L indsay Unified School District, the panel held that Title I I o f the Americans with Disabilities Act does not require a public entity to structurally alter public seating at a hig h school football field, where the seating was constructed prior to the ADA’s enactment, and the scho o l d i strict provides prog ram a c c ess to individuals who use wheelchairs.

COUNSEL

Russell Handy (arg

ued), Center for Disability Acces s , S an Dieg o, California, for Plaintiff-Appellant.

Michael J

. Maurer (arg

ued), McCormick Kabot J enner & L ew, Visalia, California, for Defendant-Appellee.

OP INION

M. SMI TH, Circuit J udg e :

I n this ap p e al, w e consider whether Title I I o f the Americans with Disabilities A ct, 42 U.S.C. § § 12131–12165 (ADA), requires a public entity to structurally alter public

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D A U B E R T V

. L I N D S A Y USD 3

seating at a h ig h school football field, where the seating was constructed prior to the ADA’s e nactment, and the school district provides prog r am a ccess to individuals who use wheelchairs. W e conclude that Title I I imposes no s u c h burden, and we therefore affir m t h e district court’s g rant o f summary ju dg ment to Defendant-Appellee L indsay Unified School District (School District).

F ACTUAL AND P ROCEDURAL BACK G ROUND

L indsay
, California is a small town located in the VisaliaPorterville Metropolitan area. T he town has a total a rea of 2.6 miles and a population of under 1 2 ,000. Approx imately 1,100 students attend L indsay

Hig h School.

L indsay H ig h School has a football field that is ty pical o f those f o und at many small hig h schools. I t consists of a turf field surrounded by a chain link fence. B ey ond the fence lies

a sing le se t of metal bleachers on the south side of the field. The bleachers are small, spanning from o n e thirty -y ard line to the other, and they are surrounded by p ave m ent on all sides. The field does not offer any other public seating

.
The bleacher s a t the L indsay Hig h School football field

were constructed in 1971, and h ave never been reconstructed

or altered. The bleachers are not wheelchair accessible. They

are only accessible by stairs, and there is no clear floor space within the bleachers where a wheelchair may rest.

W h ile the south-side bleachers a re not wheel c hair accessible, the School District desig nates three s p e c i fic locations from which persons who use wheelchairs ar e a bleD A U B E R T V

. L I N D S A Y USD 4

to watch football g a m e s. 1 The School District a lso permits spectators who use wheelchairs to sit on the north and south sides of the field, on the paved a r ea, at an y point along the fence.

Spectators who use w heelchairs reg u larly attend L indsay Hig h School f

ootball g ames. According to both parties, such specta t o r s a

re able to attend g ames w ith companions, a nd enjoy unobstructed views from the following locations: (1) in front of the south-side bleachers between the thirty and forty

y ard lines; ( 2) the southwest c orner of the field, and (3) the

en d z o n e on the east side of the field. The parties also ag r ee that the end zone on the east si d e of the field is near a

c o n c ession stand, and that spectators tend to cong reg ate i n this area to watch g ames.
Plaintiff-Appellant Timothy D aubert is disabled, and u ses

a w heelchair for mobility

. Daubert p e riodically attended football g ames a t the L indsay Hig h Scho ol football field between 1997 and 2005. Daubert contends that he “could not fully e njoy ” the g ames because h e “ ha d a n i n ferior view o f the field and had to deal with ei ther looking throug h a g ate,

or folks periodically walking in front of [ him]
, or play ers a nd coaches standing on the sidelines obscuring [ his] view of the play .” The School District has no t a ltered its wheelchairaccessible seating since Daubert last attende d a football

1 T h e Sch o ol District s p ecif ically desig n ates th e f

o llo w in g lo catio n s f

or p erso n s w h o u se w h eelch airs t o w atch f

o o t b all g am es: “ (1 ) b eh in d eith er
en d zo n e [sic] o n eith er th e g rass o r th e pav e[m en t]; (2 ) n ear th e co rn er of th e f ield
, in an y co rn er; [an d ] (3 ) alo n g th e [n o rth o r so u th ] sid elin e, n ear th e f en ce sep aratin g th e tu rf

an d th e p av e[m en t], at ap p ro x im ately eith er [tw en ty

- f i v e- ]y ard lin e.”D A U B E R T V

. L I N D S A Y USD 5

game, and Daubert does not currently attend football g ame s at the L indsay

Hig h School football field for this reason.

Despite Daubert’s alleg ations, he concedes that he has not taken advantag e of the wheelchair-accessible seating areas from wh i ch other spectators using wheelchairs e njoy unobstructed v iews. Nonetheless, Daubert arg ues tha t t hese wheelchair-accessible areas are “not satisfactory
, ” because: (1) “[ they do not] compare[ ] in quality and convenience [ to] the e levated stadium-sty le seating ,” and (2) D au b e r t would like to sit with other fans.

On Aug ust 20, 2009, Daubert initiated this action in the United States District C o urt for the Eastern District o f California, a lleg ing that the School District is in violation o f Title I I of the ADA because the bleachers at the L indsay Hig h School football fie l d are not wheelchair accessible. F ollowing discovery
, the district court g ranted summary judg ment to the School District. I n so d oing
, the district c o u r t held that: (1) because the bleachers were constructed in 1971, they constitute an ex isting f

acility under t he ADA, and therefore the School D istrict need not provide wheelchair a ccess to the bleachers so long as it provides access to “ prog ram s a nd services” at the footb a l l f i e ld; and (2) the School District provides Daubert w i t h prog ram access to f ootball g ames. Daubert timely

appealed.

JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U.S.C. § 1291. W e r eview

a district court’s d ecision to g r ant summary judg ment de

novo. Bias v. Moynihan
, 5 08 F .3d 1212, 1218 (9th Cir. 2007).D A U B E R T V

. L I N D S A Y USD 6

D ISCUSSION

I. Legal Standard

T h e ADA, sig ned into law on J uly 26, 1990, ai m s “ t o provide a c lear and c omprehensive national mandate f o r the elimination of di s c rimination ag ainst individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The ADA includes three separate titles relating to discrimination. T itle I I reg ulates state and local g overnments operating public services or prog

rams.

Under Title I I of the ADA, a “qualified individual with a disability ” cannot, “by reason o f such disability
, be ex cluded from participation in or be denied the benefits of the services, prog r ams, or activities of a p u b l ic e ntity
, or b e subjected to discrimination by

any such entity .” Id

. § 12132.

To make out a prima facie c ase under Title I I of the ADA,

a plaintiff must show that: “(1) [he] is an ind i v i d u a l with a disability ; (2) [he] is otherwise q ualified to participate in o r receive the benefit of a public entity ’s services, prog rams, o r activities; (3) [he] was ei t h e r e x cluded f rom participation in

or denied th e benefits o f the public e ntity ’ s services, prog r ams or a ctivities or was otherwise discriminated ag ainst by the public entity ; and ( 4 ) such ex clusion, denial of benefits

or discrimination was by reason of [ h is] disability .” Sheehan

v. City & Cnty. of S.F.
, 743 F .3d 1211, 1232 (9th Cir. 2014). An individual is ex cluded from p articipation in or denied the benefits of a public prog ram if “a public entity ’s facilities a re inaccessible to or unusable by individuals w ith disabilities.” 28 C.F .R. § 35.149.D A U B E R T V

. L I N D S A Y USD 7

I n defining acces s i bility
, T itle I I ’s implementing reg ulations disting uish between newly constructed or a ltered facilities, w hich are covered by 28 C.F .R. § 35.151, a nd

ex isting facilities, which are covered by 28 C.F .R. § 35.150.

A. New Construction and Alterations

Section 35.151(a)(1) provides: “Each facility o r part of a facility constructed by
, on b ehalf of, or for the use of a public entity shall be desig ned and constructed in such manner that the facility or part of the facility is readily a ccessible to a nd usable by individuals with disabilities, if the construction was

c o m m e n c e d a

f t e r J a n u a r y 2 6

, 1 9 9 2

. ” 2 8 C

. F. R

. § 35.151(a)(1) (emphasis added). To be “readily accessible,” any p art o f a n ewly constructed o r altered facility mu s t be constructed in conformance with the A mericans with Disabilities A ct Accessibility Guidelines for B u i lding s a nd F acilities (ADAAG), 2 8 C.F .R. Pt. 3 6, A p p

. A, or with the Uniform F ederal Accessibility Standards (UF AS), 41 C.F .R. Pt. 101–19.6, App. A. See 28 C.F .R. § 3 5.151 (c)(1)–(3). 2 The ADAAG is a comprehensive set of structural g uidelines that

ar ticulates detailed desig n requirements to accommodate persons with disabilities. See 28 C.F .R. Pt. 36, A p p

. A

. Among other requirements, the ADAAG mand a t e s that

2 “I f p h y sical co n stru ctio n o r alteratio n s co m m en ce[d ] af

ter Ju l y 2 6
, 1 9 9 2
, b u t prio r to Sep tem b er 1 5
, 2 0 1 0
, th en n ew co n stru ctio n an d alteratio n s

. . . m

u st co m ply w ith eith er UFA S or th e 1 9 9 1 [A DA A G ]

. . . . If p h y sical co n stru ctio n o r alteratio n s co m m en ce[d ] o n o r af

t er Sep tem

ber 1 5
, 2 0 1 0 an d b ef

o re March 1 5
, 20 1 2
, th en n ew co n s tru ctio n an d alteratio n s

. . . m ay co m

ply w ith

. . . [t]h e 2 01 0 [A DA A G ], UFA S, o r th e 1 9 9 1 [A DA A G]

. . . . If p h y sical co n stru ctio n or alteratio n s co m m en ce[d ]

o n or af ter March 1 5
, 2 0 1 2
, th en n ew co n stru ctio n an d alteratio n s

. . . sh all

co m ply w i th th e 2 0 10 [A DA A G].” 2 8 C.F.R. § 3 5 .1 5 1 (c)(1 )– (3 ).D A U B E R T V

. L I N D S A Y USD 8

w h e e l chair seating be included as “an integ ral part of an y fix ed seating plan.” 28 C.F .R. Pt. 36, App. B

.

B. Existing F acilities

I n contrast to newly cons t r ucted or altered facilities, a public entity ’s existing

facilities

—

those facilities constructed prior to J anuary 26, 1992— n e ed not be “accessible to a nd usable by individuals with disabilities.” 2 8 C.F .R. § 35.150(a)(1). Rath er, with respect to ex isting facilities, a public entity nee d o n ly provide prog ram access, b y “operat[ ing ] each service, prog ram, or activity so that the service, prog r am, or activity
, when viewed in its entir e t y , is readily accessible to and usable by individuals with disabilities.” Id . § 35.150(a).

The applicable reg u lations provide a number of methods throug h w hich a public e ntity may ach i e v e prog ram access, including “any

. . . methods that result in making its services, prog r ams, or activities readily accessi b l e t o and usable b y i n d ividuals with disabilities.” Id

. § 35.150(b)(1). “I n choos i n g among available methods for [ achieving pr o gram access]
, a public entity shall g ive priority to those methods that offer services, prog rams, an d a c t i v i t i e s t o qualified individuals with disabilities in the most integ r ated setting appropriate.” I d

.
“Title I I ’s emphasis on ‘ prog ram accessibility ’ r a ther than ‘facilities accessibility ’ was intended to ensure broad access to public services, while, at the same time, p r o v iding public entities with the flex ibility to choose how best to make access available.” Parker v. Unive r s idad de Puerto Rico
, 225 F .3d 1, 6 (1st Cir. 2000). F or this re a son, the reg ulations

e m phasiz e that “[ a ] public entity is not required to m a k e structural chang e s in ex isting facilities where other methodsD A U B E R T V

. L I N D S A Y USD 9

are e ffective in achieving compliance.” 2 8 C.F .R. § 35.150(b)(1). The Supreme Court has f urthe r instructed that, “[ i] n the case o f o l d e r facilities, for which structural

c hang e is likely to be more difficult, a public entity m a y comply with T itle I I by a dopting a variety o f less costly

measures

. . . [ and] [o] nly if these measures are ineffective in achieving accessibility is the public entity required to make reasonable structural chang e s.” Tennessee v. Lane
, 541 U.S. 509, 532 (2004).

II. Daubert’s Claim

Daubert arg ues that the School District ex cludes him from

a “public prog ram,” because (1) the bleachers at the L indsay Hig h Sc h o o l football field are n ot accessible to individuals who use wheelc h airs; and (2) the seating that is available to individuals who use wheelchairs i s n ot ADAAG compliant. These arg uments misconstrue the reg ulato r y scheme, a nd therefore fail to establish that the School District ex cludes Daubert in violation of Title I I

.

A. Bleacher Accessibility

I t is undisp u t ed that the bleachers at the L indsay Hig h School football field are not wheelchair accessible. However, because the bleachers we re constructed in 1971, they are an

ex isting facility under the applicable reg ulations. 28 C.F

. R

. § 35.150. According ly
, the fac t that the bleachers are not accessible does not amount to ex c lusion under T itle I I so long

as the School District provi d e s p rog ram access to prog rams at the football field—in this case, football g ames. See id

. § 35.150(a).D A U B E R T V

. L I N D S A Y USD 10

Daubert arg ues that, under the facts of this case, prog ram

access not only r equires access to f o o tball g ames, but also includes access to the south-side bleachers. According to Da u b e rt , the “social ex perience” of sitting in the bleachers with other L indsay Hig h School fans c onstitutes a dis t inct public prog r am, to w hich he h as a rig ht o f a c ce s s. W e disag ree.

As discussed above, Title I I ’s implementing regu l a tions clearly disting uish facilities from prog rams. U nder section 35.150, a public entity need not make each o f i t s ex isting facilities “access i b l e to and usable b y individuals with disabilities.” Id

. § 35.150(a)(1); see a lso id. § 35.150(b)(1) (“A public e n t i t y is n ot required to make structural chang e s in ex isting facilities

. . . .” ( e mphasis added)). A p ublic entity must, however, “operate each

. . . program

. . . [so that it] is readily accessible to and usable by individuals with disabilities.” Id . § 35.150(a) (emphasis added).

W e have ex plained that w hether a public fu n ction constitutes a public prog ram under Title I I turns “not so much

on whether a particular public funct i o n c a n technically be characteriz ed as a service, prog ram , o r activity
, but [ o n] whether it is a normal function of a g o vernmental e ntity

. ” Barden v. City of Sacramento
, 292 F .3d 1073, 1076 ( 9th Cir. 2002) (internal c itations and quotation marks omitted). A normal function of a g overnment e ntity is “any thing a public entity does ,” such as maintaining c ity sidewalks, z oning
, a nd issuing certain licenses. I d

. (emphasis added). Bu t those

ex p eriences that are merely incidental to normal g overnment functions are n ot fairly c harac t e r i z ed as g overnment prog rams under 28 C.F .R. § 35.150.D A U B E R T V

. L I N D S A Y USD 11

Here, the School District offers football g ames as a public p rog ram, and the bleachers are one part of the facility i n which that prog ram takes place. W h i le sitting in the southside bleachers may offer a particular social e x perience, this

ex p erience is merely incidental to the prog r am the g overnment offers (i.e., f ootball g ames), and provid i ng this

ex p erience is not fairly characteriz ed as “a normal function o f a g overnment entity .” I

d

. 3

Moreover, “a court must construe reg ulations so as to g ive effect to each provision,” and D aubert’s arg ume n t that the bleache r s a re a public prog ram would render the prog ram

access standard meaning less. Ctr. for B iological Diversity v

. Salazar , 706 F .3d 1085, 1094 (9th Cir. 2013) (citing Boeing Co. v. United States
, 2 58 F .3d 958, 967 (9th Cir. 2001)). Title I I ’s reg ulations clearly dis t i n g u i sh between newly constructed

or altered facilities, which must be made readily accessible to individuals with d isabilities, 28 C.F .R. § 35.151, and ex isting facilities, which need only provide prog ram access, 28 C.F .R. § 35.150. I f prog ram a c cess required public ent i t i e s to structurally alter ex isting facilitie s whenever the ex isting public seating is not readily ac c es s i ble to individuals with disabilities, section 35.150’s separate provisions for ex isting facilities would serve no purpose.

F or these reasons, w e reject Daubert’s contention that the relevant “prog ram” is the south-side bleachers, a nd we

3 A lth o u g h it is u n

p u b lish ed
, th e F if

th Circu i t r e a c h e d th e sam e

co n clu sio n in a w ell- r e a s o n ed o p i n io n in Greer v. Rich ard so n In d ep en den t S ch o o l District
, 4 7 2 Fed

. A p px

. 2 8 7
, 2 9 3 (5 th Cir. 2 0 1 2 ). In so d o in g , th e F if th Circu it h eld th at pro g ram access d o es n o t req u ire “ th at a d isa b l e d in d iv i d u al

. . . b e ab le to

. . . e x p e r i en ce [a h ig h sch o o l f o o tb all] g am e f ro m th e g en eral ad m issio n

p u b lic b leach ers . . . .” Id

.D A U B E R T V

. L I N D S A Y USD 12

conclude that the S c h o o l District complies with Title I I
, so long as it provides prog ram access to its football g ames.

B. P rogram Access to F ootball G am es

Daubert nex t claims that the School Distric t fails to provide him with prog ram a c c ess to football g ames because
t he seating that is available to individuals w h o u s e wheelchairs does not comply with the ADAAG’s desig n a nd in teg ration r equirements. This arg ument rests on a misunderstanding of the g overning reg ulations, and we reject it.

As discussed above, only facilities that were constructed

or altered after J anuary 26, 1992 are subject to the ADAAG’s requirements. 28 C.F .R. § 3 5

. 151(a)(1). W ith respect to facilities that were constructed prior to this date, a public entity need only “oper at e each

. . . p rog ram [ at that facility ]

. . . [ so that it] is readily a ccessib l e t o and usable b y individuals with disabilities.” Id. § 3 5

. 1 50(a). L ike the ADAAG, section 35.150 p rioritiz es int e gration, but it does not require e x isting facilities to underg o structural chang es to achieve integ r ation. Id. § 35.150(b)(1); see also Lane
, 541 U.S. at 532.

F ootball g ames at the L indsay H ig h School football stadium are “readily access i b l e ” to individuals who use wheelchairs. See 28 C.F .R. § 3 5.150(a). The School District offers many d ifferent locations from which spect a t o r s w ho

use w heelchairs are able to v i ew football g ames, and it is undisputed that suc h spectators e n joy unobstructed v iews from at least three of these locations.D A U B E R T V

. L I N D S A Y USD 13

Moreover, the current seating is appropriately integ rated under the circumstances. S ee id. § 3 5

. 150(b)(1). Spectators who use wheelchairs may sit with companions and are able to sit directly in front of the b l eachers, to each side of the bleachers, and in other areas where spectators cong reg ate. I n lig ht of the structure of th e facility
, any further measures to provide integ rated wheelchair seating would require the School District to undertake structural alteration s of the bleachers. B ecause w e conclude that the School D i s t rict provides Daubert with prog ram access to L indsay Hig h School football g ames u nder 28 C.F .R. § 35.150, and because
t he School District is not required to comply with t h e ADAAG, the S c h o o l District is n ot r equired to make such structural alterations.

CONCLUSION

F or the reasons stated, Daubert has not established that the School District ex cludes him from a public prog ram, a nd he therefore fails to m a k e o u t a prima f acie case o f discrimination under Title I I o f the ADA

. A c c o rding ly
, we affirm the judg ment of the district court.

AF F IRMED.