The “Program Accessibility” Exception for Public Entities Under the ADA

ADA Accessible Route signPublic owners, as well as private owners and tenants of commercial and retail properties, are at risk of lawsuits brought under the Americans with Disabilities Act of 1990 (“ADA”) and related state law alleging that their facilities are not accessible by those with disabilities.

A common misperception among private owners and tenants is that facilities constructed before the ADA went into effect in 1992 are exempt or “grandfathered” from the ADA’s requirements. Not so. At least generally. If, however, you are a public entity, there is such an exception. Lucky you.

Under the ADA, public facilities constructed prior to January 26, 1992 need not be “accessible to and usable by individuals with disabilities” so long as a public entity’s “service[s], program[s] and activit[ies], when viewed in [their] entirety, [are] readily accessible to and usable by individuals with disabilities.” Known as “program accessibility,” the exception has left many public entities scratching their heads as to what they can and must do.

In Daubert v. Lindsay Unified School District, Case No. 12-16252 (July 25, 2014), the United States Court of Appeals for the Ninth Circuit provided clarification of what a school district can and must do to satisfy the program accessibility requirements under the ADA with respect to one of the most popular programs of schools, the school sporting event.


In 2009, Timothy Daubert (“Daubert”), a disabled individual, sued the Lindsay Unified School District (“School District”) alleging that bleachers at the Lindsay High School football field were not accessible by those using wheelchairs. The bleachers, which were constructed in 1971, had never been reconstructed or altered and were not wheelchair accessible.

Although not wheelchair accessible, the high school provided three other locations from which person who use wheelchairs could watch football games – In front of the bleachers between the thirty and forty-yard lines, at the southwest corner of the field, and the end zone at the east side of the field (I would draw a diagram, but I’m terrible at drawing).

Despite these alternative wheelchair accessible locations, Daubert contended they were “not satisfactory” because (1) “[they did not] compare[ ] in quality and convenience [to] the elevated stadium-style seating,” and (2) Daubert wanted to sit with other fans.

Following suit, the School District filed a motion to have the case dismissed, which was granted by the court which held that (1) because the bleachers were constructed in 1971, they were an existing facility under the ADA, and the School District therefore did not need to provide wheelchair access to the bleachers so long as it satisfied the program accessibility requirements of the ADA, and (2) The School District’s alternative wheelchair accessible locations met the program accessibility requirements of the ADA.

Daubert appealed.

The Ninth Circuit Decision

On appeal, Daubert argued that program accessibility under the ADA required not only that the School District allow him access to the football games, but also access to the bleachers.  According to Daubert, the “social experience” of sitting in the bleachers with other Lindsay High School footfall fans constituted a distinct public program to which he had a right of access.

The Ninth Circuit disagreed.  The program accessibility requirements, explained the Court, “clearly distinguish facilities from programs.” Under the regulations implementing the program accessibility requirements of the ADA, 24 CFR 35.150, a public entity need not make its existing facilities accessible to and usable by individuals with disabilities, but rather, must only operate its “service[s], program[s] and activit[ies] [so that they are] readily accessible to and usable by individuals with disabilities.”

Moreover, explained the Court, whether a public function constitutes a public program turns “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 government entity” such as “maintaining city sidewalks, zoning, and issuing certain licenses.” And, “[e]xperiences that are merely incidental to normal government functions are not fairly characterized as government programs under 28 C.F.R. § 35.150.”

Here, held the Court, while football games at a local high school can be characterized as a government program, bleachers are “merely incidental to the program the government offers (i.e., football games), and providing the [social] experience [of sitting in bleachers] is not fairly characterized as ‘a normal function of a government entity.'”  Moreover, explained the Court, “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.”

Finally, in response to Daubert’s contention that the School District was also required to ensure that its alternative wheelchair accessible locations complied with the design and integration requirements of the ADA Accessibility Guidelines (“ADAAG”), the court held that “only facilities constructed or altered after January 26, 1992 are subject to the ADAAG’s requirements . . . [and for] facilities that were constructed prior to this date . . . [the ADA] does not require existing facilities to undergo structural changes.”


For public entities, Daubert offers a couple of reminders and a lesson. First, for existing facilities constructed prior to January 26, 1992, a public entity need not make such facilities accessible to persons with disabilities so long as they meet the program accessibility requirements of the ADA. Second, when meeting the program accessibility requirements of the ADA, a public entity need not make structural changes that comply with ADAAG. And, finally, in determining what is required to comply with the program accessibility requirements of the ADA, it is the public program not each component of the facility in which that program takes place which must be made accessible by those with disabilities.

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