MEANINGFUL ACCESS REQUIRED BY THE REHABILITATION ACT and the ADA

DENIAL OF MEANINGFUL ACCESS

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, prohibits discrimination against the handicapped by recipients of federal funds. Each federal agency has its own regulations that are applicable to federal fund recipients.

Under the Rehabilitation Act, in Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the Supreme Court held that:

The balance struck in Davis [Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979)] requires that an otherwise qualified handicapped individual be provided with meaningful access to the benefit that the grantee offers. The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantees program or benefit may have to be made. Id. at 301.

In a decision under Title III of the Americans with Disabilities Act (ADA), the Supreme Court held that:

Congress’ repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations. In this case, Congress did more than suggest this construction; it adopted a specific statutory provision in the ADA directing as follows:

“Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. § 790 et. seq.) or the regulations issued by Federal agencies pursuant to such title.” 42 U.S.C. § 12201(a)

The directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act. (emphasis added). See Bragdon v. Abbott, 524 U.S. 624, 631-32, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998).

In a decision under Title II of the ADA, the U.S. Court of Appeals for the Ninth Circuit explained “meaningful access” as it was used in Alexander v. Choate. The Crowder Court explained:

The Supreme Court interpreted the Rehabilitation Act in Alexander v. Choate. In Choate, the Court concluded that Congress intended to protect disabled persons from discrimination arising out of both discriminatory animus and “thoughtlessness,” “indifference,” or “benign neglect.” The Court held, however, that judicial review over each and every instance of disparate impact discrimination would be overly burdensome. Rather than attempt to classify a type of discrimination as “deliberate” or “disparate impact,” the Court determined it would be more useful to access whether disabled persons were denied “meaningful access” to state-proved services. (citations omitted). See Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir. 1996)

Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134, prohibits public entities from discriminating against the disabled. The regulations for the ADA are 28 C.F.R. Part 35.

Title II’s definition section states that “public entity” includes “any State or local government” and “any department, agency or special purpose district.” See Olmstead v. L.C. by Zimring, 527 U.S. 581, 590, 119 S.Ct. 2176, 2182, 144 L.Ed.2d 540 (1999).

The U.S. Court of Appeals for the First Circuit held that the protection afforded by the ADA is characterized as a guarantee of “meaningful access” to government benefits and programs which broadly means that public entities must take reasonable steps to ensure that individuals with disabilities can take advantage of such public undertakings. See Theriault v. Flynn, 162 F.3d 46, 48 (1st Cir. 1998).

The U.S. Court of Appeals for the Second Circuit held that otherwise qualified handicapped individuals are entitled to “meaningful access” to activities that a public entity offers under the Rehabilitation Act in Rothschild v. Grottenthaler, 907 F.2d 286, 292 (2nd Cir. 1990).

The U.S. Court of Appeals for the Second Circuit held that “meaningful access” applied to the ADA in Henrietta D. v. Bloomberg, 331 F.3d 261, 273, 277 (2nd Cir. 2003).

The U.S. Court of Appeals for the Third Circuit held that “meaningful access” applied to Section 504 of the Rehabilitation Act in Three Rivers Center for Independent Living, Inc. v. Housing Authority of the City of Pittsburg, 382 F.3d 412, 427 (3rd Cir. 2004).

The U.S. Court of Appeals for the Fifth Circuit stated that although Supreme Court precedent suggests that denial of “meaningful access” is equivalent to a full denial of access under the ADA it did not address the issue in Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 672 n.2.

The Fifth Circuit includes Louisiana, Mississippi, and Texas. Texas State Senator Rodney Ellis requested that the Texas Attorney General issue an opinion as to whether or not “meaningful access” applies to Title II of the ADA with regard to a public entity’s programs in Texas. The Texas Attorney General answered in the affirmative in Opinion No. GA-0579.

The opinion can be viewed in html format at:

http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2007/htm/ga-0579.htm

The opinion can also be downloaded in pdf format at:

http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2007/pdf/ga0579.pdf

The U.S. Court of Appeals for the Fifth Circuit had previously held that “meaningful access” applies to Section 504 of the Rehabilitation Act in Brennan v. Stewart, 834 F.2d 1248, 1261 (5th Cir. 1988).

The U.S. Court of Appeals for the Sixth Circuit held that the ADA requires that public entities provide “meaningful access” to disabled individuals so as not to deprive them of the benefits of the services that the public entities provide in Ability Center of Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004).

The U.S. Court of Appeals for the Eighth Circuit held that the ADA and the Rehabilitation Act require that otherwise qualified individuals with disabilities receive “meaningful access” to a public entities programs and activities in Randolph v. Rogers, 170 F.3d 850, 858 (8th Cir. 1999).

The U.S. Court of Appeals for the Ninth Circuit held that if a public entity denies an otherwise qualified individual “meaningful access” to its services, programs, or activities by reason of his or her disability, that individual may have an ADA claim against the public entity in Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001).

The U.S. Court of Appeals for the Ninth Circuit held that Section 504 of the Rehabilitation Act guarantees “meaningful access” to programs or activities receiving federal financial assistance in Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir. 1988).

The U.S. Court of Appeals for the Tenth Circuit held that the ADA requires public entities to provide disabled individuals “meaningful access” to their programs and services in Chaffin v. Kansas State Fair Board, 348 F.3d 850, 857 (10th Cir. 2003).

The U.S. District Court for the Middle District of Florida held that the ADA requires “meaningful access” to a public entities benefits under the ADA in Harding v. Winn-Dixie Stores, Inc., 907 F.Supp. 386, 391 (M.D.Fla. 1995).

So, if individuals with disabilities caused or exacerbated by second hand tobacco smoke are entitled to “meaningful access” to airports, why are they assaulted by second hand tobacco smoke in some airports?

There are a number of reasons for this and one of those reasons is that when they complain about access to airports they claim that they are being “denied a reasonable accommodation” rather than claim that they are being denied “meaningful access” to the airport in violation of Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985)).”

Another reason is the fact that the Department of Transportation and the Federal Aviation Administration allow airports to “make reasonable accommodations on an individual basis” rather than require airports to make “meaningful access” to individuals with disabilities. (See letter to Betty Campbell at http://www.gaspoftexas.com/bettycampbell.pdf)

In 1996, Ms. Patricia L. Young made a complaint to the City of Dallas, Texas, alleging that she was being “denied meaningful access” to Dallas Love Field in violation of the Supreme Court decision in Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985).”

Ms. Diane Emery contacted Ms. Diana M. Sword, Director of Human Recourses, City of Dallas, every day until Ms. Sword responded to Patty’s complaint in a letter to Diane.

In her letter to Diane Emery, dated September 18, 1996, Ms. Sword stated:

I am writing to follow-up our telephone conversation regarding smoking at City facilities. The Office on Disability, Department of Human Recourses, has been working with City facilities concerning smoking as a barrier to people with respiratory disabilities. Reunion Arena and Love Field are now smoke-free environments.

See letter to Diane Emery at http://www.gaspoftexas.com/dianeemery.pdf .

Also, Ms. Young made a disability discrimination complaint to Michael DiGirolamo, Deputy Executive Director of Operations, DFW Airport, and that resulted in DFW Airport going smoke-free. This was reported in the media, both in print and on television.

Therefore, complaints made to public entities, such as airports, should allege “denial of meaningful access in violation of Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985).”

Also, in complaints regarding “denial of meaningful access,” the following text should be included:

Actually, the ADA language requiring “reasonable accommodation” appears in Title I of the ADA and applies only to employers. The language applicable to public services, benefits and programs is found in the regulations implementing Title II of the ADA. These regulations require “reasonable modifications” to public services and programs that discriminate on the basis of disability unless such modifications would fundamentally alter the nature of the service or program. (citing 28 C.F.R. § 35.130(b)(7)) (emphasis in original). See Weinreich v. Los Angeles Metropolitan Transportation Authority, 114 F.3d 976, 978 n.1 (9th Cir. 1997) cert. denied 118 S.Ct. 976.

The statutes and regulations cited above can be accessed at http://www.law.cornell.edu.

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