FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY S. DAUBERT,

Plaintiff-Appellant,

v.

LINDSAY UNIFIED SCHOOL DISTRICT,

Defendant-Appellee.

No. 12-16252

D.C. No.

1:09-cv-01463-

GSA

OPINION

Appeal from the United States District Court

for the Eastern District of California

Gary S. Austin, Magistrate Judge, Presiding

Argued and Submitted

May 15, 2014—San Francisco, California

Filed July 25, 2014

Before: M. Margaret McKeown and Milan D. Smith, Jr.,

Circuit Judges, and Susan R. Bolton, District Judge.*

Opinion by Judge Milan D. Smith, Jr.

 

* The Honorable Susan R. Bolton, United States District Judge for the

District of Arizona, sitting by designation.
2 DAUBERT V. LINDSAY USD

SUMMARY**

Americans with Disabilities Act

Affirming the district court’s grant of summary judgment

to the Lindsay Unified School District, the panel held that

Title II of the Americans with Disabilities Act does not

require a public entity to structurally alter public seating at a

high school football field, where the seating was constructed

prior to the ADA’s enactment, and the school district

provides program access to individuals who use wheelchairs.

COUNSEL

Russell Handy (argued), Center for Disability Access, San

Diego, California, for Plaintiff-Appellant.

Michael J. Maurer (argued), McCormick Kabot Jenner &

Lew, Visalia, California, for Defendant-Appellee.

OPINION

M. SMITH, Circuit Judge:

In this appeal, we consider whether Title II of the

Americans with Disabilities Act, 42 U.S.C. §§ 12131–12165

(ADA), requires a public entity to structurally alter public

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DAUBERT V. LINDSAY USD 3

seating at a high school football field, where the seating was

constructed prior to the ADA’s enactment, and the school

district provides program access to individuals who use

wheelchairs. We conclude that Title II imposes no such

burden, and we therefore affirm the district court’s grant of

summary judgment to Defendant-Appellee Lindsay Unified

School District (School District).

FACTUAL AND PROCEDURAL BACKGROUND

Lindsay, California is a small town located in the VisaliaPorterville Metropolitan area. The town has a total area of 2.6

miles and a population of under 12,000. Approximately 1,100

students attend Lindsay High School.

Lindsay High School has a football field that is typical of

those found at many small high schools. It consists of a turf

field surrounded by a chain link fence. Beyond the fence lies

a single set of metal bleachers on the south side of the field.

The bleachers are small, spanning from one thirty-yard line

to the other, and they are surrounded by pavement on all

sides. The field does not offer any other public seating.

The bleachers at the Lindsay High School football field

were constructed in 1971, and have 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.

While the south-side bleachers are not wheelchair

accessible, the School District designates three specific

locations from which persons who use wheelchairs are able
4 DAUBERT V. LINDSAY USD

to watch football games.1 The School District also permits

spectators who use wheelchairs to sit on the north and south

sides of the field, on the paved area, at any point along the

fence.

Spectators who use wheelchairs regularly attend Lindsay

High School football games. According to both parties, such

spectators are able to attend games with companions, and

enjoy unobstructed views from the following locations: (1) in

front of the south-side bleachers between the thirty and fortyyard lines; (2) the southwest corner of the field, and (3) the

end zone on the east side of the field. The parties also agree

that the end zone on the east side of the field is near a

concession stand, and that spectators tend to congregate in

this area to watch games.

Plaintiff-Appellant TimothyDaubert is disabled, and uses

a wheelchair for mobility. Daubert periodically attended

football games at the Lindsay High School football field

between 1997 and 2005. Daubert contends that he “could not

fully enjoy” the games because he “had an inferior view of

the field and had to deal with either looking through a gate,

or folks periodically walking in front of [him], or players and

coaches standing on the sidelines obscuring [his] view of the

play.” The School District has not altered its wheelchairaccessible seating since Daubert last attended a football

1 The School District specifically designates the following locations for

persons who use wheelchairs to watch football games: “(1) behind either

endzone [sic] on either the grass or the pave[ment]; (2) near the corner of

the field, in any corner; [and] (3) along the [north or south] sideline, near

the fence separating the turf and the pave[ment], at approximately either

[twenty-five-]yard line.”
DAUBERT V. LINDSAY USD 5

game, and Daubert does not currently attend football games

at the Lindsay High School football field for this reason.

Despite Daubert’s allegations, he concedes that he has not

taken advantage of the wheelchair-accessible seating areas

from which other spectators using wheelchairs enjoy

unobstructed views. Nonetheless, Daubert argues that these

wheelchair-accessible areas are “not satisfactory,” because:

(1) “[they do not] compare[] in quality and convenience [to]

the elevated stadium-style seating,” and (2) Daubert would

like to sit with other fans.

On August 20, 2009, Daubert initiated this action in the

United States District Court for the Eastern District of

California, alleging that the School District is in violation of

Title II of the ADA because the bleachers at the Lindsay High

School football field are not wheelchair accessible. Following

discovery, the district court granted summary judgment to the

School District. In so doing, the district court held that:

(1) because the bleachers were constructed in 1971, they

constitute an existing facility under the ADA, and therefore

the School District need not provide wheelchair access to the

bleachers so long as it provides access to “programs and

services” at the football field; and (2) the School District

provides Daubert with program access to football games.

Daubert timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

a district court’s decision to grant summary judgment de

novo. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007).
6 DAUBERT V. LINDSAY USD

DISCUSSION

I. Legal Standard

The ADA, signed into law on July 26, 1990, aims “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 includes

three separate titles relating to discrimination. Title II

regulates state and local governments operating public

services or programs.

Under Title II of the ADA, a “qualified individual with a

disability” cannot, “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.” Id. § 12132.

To make out a prima facie case under Title II of the ADA,

a plaintiff must show that: “(1) [he] is an individual with a

disability; (2) [he] is otherwise qualified to participate in or

receive the benefit of a public entity’s services, programs, or

activities; (3) [he] was either excluded from participation in

or denied the benefits of the public entity’s services,

programs or activities or was otherwise discriminated against

by the public entity; and (4) such exclusion, denial of benefits

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

v. City & Cnty. of S.F., 743 F.3d 1211, 1232 (9th Cir. 2014).

An individual is excluded from participation in or denied the

benefits of a public program if “a public entity’s facilities are

inaccessible to or unusable by individuals with disabilities.”

28 C.F.R. § 35.149.
DAUBERT V. LINDSAY USD 7

In defining accessibility, Title II’s implementing

regulations distinguish between newly constructed or altered

facilities, which are covered by 28 C.F.R. § 35.151, and

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

A. New Construction and Alterations

Section 35.151(a)(1) provides: “Each facility or part of a

facility constructed by, on behalf of, or for the use of a public

entity shall be designed and constructed in such manner that

the facility or part of the facility is readily accessible to and

usable by individuals with disabilities, if the construction was

commenced after January 26, 1992.” 28 C.F.R.

§ 35.151(a)(1) (emphasis added). To be “readily accessible,”

any part of a newly constructed or altered facility must be

constructed in conformance with the Americans with

Disabilities Act Accessibility Guidelines for Buildings and

Facilities (ADAAG), 28 C.F.R. Pt. 36, App. A, or with the

Uniform Federal Accessibility Standards (UFAS), 41 C.F.R.

Pt. 101–19.6, App. A. See 28 C.F.R. § 35.151 (c)(1)–(3).2 The

ADAAG is a comprehensive set of structural guidelines that

articulates detailed design requirements to accommodate

persons with disabilities. See 28 C.F.R. Pt. 36, App. A.

Among other requirements, the ADAAG mandates that

2

“If physical construction or alterations commence[d] after July 26,

1992, but prior to September 15, 2010, then new construction and

alterations . . . must comply with either UFAS or the 1991 [ADAAG] . . . .

If physical construction or alterations commence[d] on or after September

15, 2010 and before March 15, 2012, then new construction and

alterations . . . may comply with . . . [t]he 2010 [ADAAG], UFAS, or the

1991 [ADAAG] . . . . If physical construction or alterations commence[d]

on or after March 15, 2012, then new construction and alterations . . . shall

comply with the 2010 [ADAAG].” 28 C.F.R. § 35.151 (c)(1)–(3).
8 DAUBERT V. LINDSAY USD

wheelchair seating be included as “an integral part of any

fixed seating plan.” 28 C.F.R. Pt. 36, App. B.

B. Existing Facilities

In contrast to newly constructed or altered facilities, a

public entity’s existing facilities—those facilities constructed

prior to January 26, 1992— need not be “accessible to and

usable by individuals with disabilities.” 28 C.F.R.

§ 35.150(a)(1). Rather, with respect to existing facilities, a

public entity need only provide program access, by

“operat[ing] each service, program, or activity so that the

service, program, or activity, when viewed in its entirety, is

readily accessible to and usable by individuals with

disabilities.” Id. § 35.150(a).

The applicable regulations provide a number of methods

through which a public entity may achieve program access,

including “any . . . methods that result in making its services,

programs, or activities readily accessible to and usable by

individuals with disabilities.” Id. § 35.150(b)(1). “In choosing

among available methods for [achieving program access], a

public entity shall give priority to those methods that offer

services, programs, and activitiesto qualified individuals with

disabilities in the most integrated setting appropriate.” Id.

“Title II’s emphasis on ‘program accessibility’ rather than

‘facilities accessibility’ was intended to ensure broad access

to public services, while, at the same time, providing public

entities with the flexibility to choose how best to make access

available.” Parker v. Universidad de Puerto Rico, 225 F.3d

1, 6 (1st Cir. 2000). For this reason, the regulations

emphasize that “[a] public entity is not required to make

structural changes in existing facilities where other methods
DAUBERT V. LINDSAY USD 9

are effective in achieving compliance.” 28 C.F.R.

§ 35.150(b)(1). The Supreme Court has further instructed

that, “[i]n the case of older facilities, for which structural

change is likely to be more difficult, a public entity may

comply with Title II by adopting a variety of less costly

measures . . . [and] [o]nly if these measures are ineffective in

achieving accessibility is the public entity required to make

reasonable structural changes.” Tennessee v. Lane, 541 U.S.

509, 532 (2004).

II. Daubert’s Claim

Daubert argues that the School District excludes him from

a “public program,” because (1) the bleachers at the Lindsay

High School football field are not accessible to individuals

who use wheelchairs; and (2) the seating that is available to

individuals who use wheelchairs is not ADAAG compliant.

These arguments misconstrue the regulatory scheme, and

therefore fail to establish that the School District excludes

Daubert in violation of Title II.

A. Bleacher Accessibility

It is undisputed that the bleachers at the Lindsay High

School football field are not wheelchair accessible. However,

because the bleachers were constructed in 1971, they are an

existing facility under the applicable regulations. 28 C.F.R.

§ 35.150. Accordingly, the fact that the bleachers are not

accessible does not amount to exclusion under Title IIso long

as the School District provides program access to programs

at the football field—in this case, football games. See id.

§ 35.150(a).
10 DAUBERT V. LINDSAY USD

Daubert argues that, under the facts of this case, program

access not only requires access to football games, but also

includes access to the south-side bleachers. According to

Daubert, the “social experience” of sitting in the bleachers

with other Lindsay High School fans constitutes a distinct

public program, to which he has a right of access. We

disagree.

As discussed above, Title II’s implementing regulations

clearly distinguish facilities from programs. Under section

35.150, a public entity need not make each of its existing

facilities “accessible to and usable by individuals with

disabilities.” Id. § 35.150(a)(1); see also id. § 35.150(b)(1)

(“A public entity is not required to make structural changes

in existing facilities . . . .” (emphasis added)). A public 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).

We have explained that whether a public function

constitutes a public program under Title IIturns “not so much

on whether a particular public function can technically be

characterized as a service, program, or activity, but [on]

whether it is a normal function of a governmental entity.”

Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.

2002) (internal citations and quotation marks omitted). A

normal function of a government entity is “anything a public

entity does,” such as maintaining city sidewalks, zoning, and

issuing certain licenses. Id. (emphasis added). But those

experiences that are merely incidental to normal government

functions are not fairlycharacterized as government programs

under 28 C.F.R. § 35.150.
DAUBERT V. LINDSAY USD 11

Here, the School District offers football games as a public

program, and the bleachers are one part of the facility in

which that program takes place. While sitting in the southside bleachers may offer a particular social experience, this

experience is merely incidental to the program the

government offers (i.e., football games), and providing this

experience is not fairly characterized as “a normal function of

a government entity.” Id.

3

Moreover, “a court must construe regulations so as to give

effect to each provision,” and Daubert’s argument that the

bleachers are a public program would render the program

access standard meaningless. Ctr. for Biological Diversity v.

Salazar, 706 F.3d 1085, 1094 (9th Cir. 2013) (citing Boeing

Co. v. United States, 258 F.3d 958, 967 (9th Cir. 2001)). Title

II’s regulations clearlydistinguish between newlyconstructed

or altered facilities, which must be made readily accessible to

individuals with disabilities, 28 C.F.R. § 35.151, and existing

facilities, which need only provide program access, 28 C.F.R.

§ 35.150. If program access required public entities to

structurally alter existing facilities whenever the existing

public seating is not readily accessible to individuals with

disabilities, section 35.150’s separate provisions for existing

facilities would serve no purpose.

For these reasons, we reject Daubert’s contention that the

relevant “program” is the south-side bleachers, and we

3 Although it is unpublished, the Fifth Circuit reached the same

conclusion in a well-reasoned opinion inGreer v. Richardson Independent

School District, 472 Fed. Appx. 287, 293 (5th Cir. 2012). In so doing, the

Fifth Circuit held that program access does not require “that a disabled

individual . . . be able to . . . experience [a high school football] game

from the general admission public bleachers . . . .” Id.
12 DAUBERT V. LINDSAY USD

conclude that the School District complies with Title II, so

long as it provides program access to its football games.

B. Program Access to Football Games

Daubert next claims that the School District fails to

provide him with program access to football games because

the seating that is available to individuals who use

wheelchairs does not comply with the ADAAG’s design and

integration requirements. This argument rests on a

misunderstanding of the governing regulations, and we reject

it.

As discussed above, only facilities that were constructed

or altered after January 26, 1992 are subject to the ADAAG’s

requirements. 28 C.F.R. § 35.151(a)(1). With respect to

facilities that were constructed prior to this date, a public

entity need only “operate each . . . program [at that facility]

. . . [so that it] is readily accessible to and usable by

individuals with disabilities.” Id. § 35.150(a). Like the

ADAAG, section 35.150 prioritizes integration, but it does

not require existing facilities to undergo structural changes to

achieve integration. Id. § 35.150(b)(1); see also Lane,

541 U.S. at 532.

Football games at the Lindsay High School football

stadium are “readily accessible” to individuals who use

wheelchairs. See 28 C.F.R. § 35.150(a). The School District

offers many different locations from which spectators who

use wheelchairs are able to view football games, and it is

undisputed that such spectators enjoy unobstructed views

from at least three of these locations.
DAUBERT V. LINDSAY USD 13

Moreover, the current seating is appropriately integrated

under the circumstances. See id. § 35.150(b)(1). Spectators

who use wheelchairs may sit with companions and are able to

sit directly in front of the bleachers, to each side of the

bleachers, and in other areas where spectators congregate. In

light of the structure of the facility, any further measures to

provide integrated wheelchair seating would require the

School District to undertake structural alterations of the

bleachers. Because we conclude that the School District

provides Daubert with program access to Lindsay High

School football games under 28 C.F.R. § 35.150, and because

the School District is not required to comply with the

ADAAG, the School District is not required to make such

structural alterations.

CONCLUSION

For the reasons stated, Daubert has not established that

the School District excludes him from a public program, and

he therefore fails to make out a prima facie case of

discrimination under Title II of the ADA. Accordingly, we

affirm the judgment of the district court.

AFFIRMED.