The opinion of the court was delivered by: WILLIAM ALSUP, District Judge
ORDER GRANTING PARTIAL SUMMARY JUDGMENT RE PRIVATE RIGHT OF
In this action alleging violations of Title II of the Americans
with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and
42 U.S.C. 1983, defendants now move for partial summary judgment to
resolve the issue of whether plaintiffs have a private right of
action to enforce certain federal regulations accompanying Title
II of the ADA. This motion is GRANTED.
This action revolves around claims that defendant City College
of San Francisco ("City College") has failed to remedy various
architectural and physical barriers that allegedly render its
nine campuses inaccessible to persons with mobility disabilities.
By order dated June 15, 2005, the following class was certified for the purposes of
injunctive and declaratory relief only:
All students disabled by mobility impairments
enrolled at the City College of San Francisco since
November 23, 2001, and who seek access to its
services, programs and/or activities.
The same order identified at least ten issues that raised
questions of law or fact common to the class:
1. Whether City College adopted a "transition plan"
as required by 35 C.F.R. 150(d);
2. Whether any such plan was adequate under the
3. The extent to which any such plan remains
4. Whether class members have a private right of
action to enforce 35 C.F.R. 150(d) and/or the terms
of any transition plan adopted under it;
5. Whether City College has adopted and implemented
an adequate evacuation plan for mobility-disabled
students and whether a private right of action
6. Whether City College has adopted a systemic policy
of leaving architectural barriers in place and
relying solely on "accommodations upon request" to
mitigate their effects and the extent to which a
private right of action therefor exists;
7. Have the "new" construction and/or "alterations"
been in compliance with 28 C.F.R. 35.151 and to what
extent to plaintiffs have a private right of action
to challenge any deficiencies;
8. Whether the DSPS menu of responses for
mobility-disabled students provides meaningful access
to City College's services, programs and activities;
9. Whether the alleged settlement between the federal
Office of Civil Rights and City College in 1993 bars
this action or one like it by any absent class
10. Whether City College receives federal assistance.
Pursuant to the Court's request, defendants now move for
partial summary judgment on the legal issue of whether plaintiffs
have a private right of action to enforce the federal regulations
accompanying Title II of the ADA. Specifically, defendants argue
that there is no private right of action under 28 C.F.R. 35.105,
28 C.F.R. 35.150(d) or with respect to its allegedly inadequate
emergency-evacuation plans. (Defendants did not move for
summary judgment as to 28 C.F.R. 35.151.) In addition, defendants
preemptively seek a judicial determination that the 1993 settlement agreement between the
Office of Civil Rights and City College is both admissible
evidence and should be accorded great weight at trial.
Under Title II of the ADA, "no 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." 42 U.S.C. 12132. There is no
dispute that there exists a private right of action under Title
II for "any person alleging discrimination on the basis of
disability." 42 U.S.C. 12133.
Pursuant to the federal regulations accompanying Title II, a
public entity, like City College, must "operate 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." 28 C.F.R. 35.150(a). This does
not necessarily require that each existing facility be made
accessible. 28 C.F.R. 35.150(a)(1). Any alteration of existing
facilities or "new" construction (i.e., work commenced after
January 26, 1992), however, is analyzed under a different
regulation. 28 C.F.R. 35.151.
Structural changes to existing facilities are not required
"where other methods are effective in achieving compliance."
28 C.F.R. 35.150(b)(1). But, if such structural changes "will be
undertaken to achieve program accessibility, a public entity that
employs 50 or more persons shall develop, within six months of
January 26, 1992, a transition plan setting forth the steps
necessary to complete such changes." 28 C.F.R. 35.150(d)(1). The
federal regulations further contemplate that no later than July
26, 1992, a public entity shall engage in a self-evaluation of
its services, policies and practices to identify whether any
modifications thereto are necessary to achieve compliance.
28 C.F.R. 35.105.
Whether plaintiffs have a private right of action to enforce
28 C.F.R. 35.105 or 28 C.F.R. 35.150(d) is a purely legal question.
There is no controlling Ninth Circuit authority on this issue.
Both sides have proffered decisions from other circuits and
various district courts in support of their view. This order
concludes that there is no private right of action to enforce either the self-evaluation or transition-plan requirements set
forth in the federal regulations accompanying Title II of the
Plaintiffs argue that the regulations accompanying Title II
constitute authoritative interpretations of the rights created by
42 U.S.C. 12132. See Chevron U.S.A. Inc. v. Nat'l Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984) (explaining that
where Congress expressly delegates authority to an agency to
elucidate a specific provision of a statute by regulation, those
legislative regulations are "given controlling weight unless they
are arbitrary, capricious, or manifestly contrary to the
statute"). "A Congress that intends the statute to be enforced
through a private cause of action intends the authoritative
interpretation of that statute to be enforced as well."
Alexander v. Sandoval, 532 U.S. 275, 284 (2001). Because there
is a private cause of action under Title II, plaintiffs assert
that there must also be a private cause of action to enforce the
accompanying regulations. This oversimplifies the holding of
Private rights of action to enforce federal law must be created
by Congress. Id. at 286. "Language in a regulation may invoke a
private right of action that Congress through statutory text
created, but it may not create a right that Congress has not."
Id. at 291. Writing for the majority, Justice Scalia further
Thus, when a statute has provided a general
authorization for private enforcement of regulations,
it may perhaps be correct that the intent displayed
in each regulation can determine whether or not it is
privately enforceable. But it is most certainly
incorrect to say that language in a regulation can
conjure up a private cause of action that has not
been authorized by Congress. Agencies may play the
sorcerer's apprentice but not the sorcerer himself.
Defendants correctly argue that Title II does not contain a
general authorization for the private enforcement of its
accompanying regulations. Thus, the focus of this order is
whether allowing plaintiffs to enforce the particular regulations
in dispute would create any private cause of action beyond that
created by Congress for enforcing Title II itself.
The Sixth Circuit recently conducted such an analysis. Ability
Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th
Cir. 2004). The Court agrees with the reasoning set forth
therein. Specifically, the issue was framed as follows:
What Sandoval makes clear is that a private
plaintiff cannot enforce a regulation though a
private cause of action generally available under the controlling statute if the regulation imposes an
obligation or prohibition that is not imposed
generally by the controlling statute. On the other
hand, if the regulation simply effectuates the
express mandates of the controlling statute, then the
regulation may be enforced via the private cause of
action available under that statute. Id. at 906
(internal citations omitted).
With respect to 28 C.F.R. 35.151, the Sixth Circuit found that
this regulation "imposes requirements specifically envisioned by
the statute" Id. at 910. It analyzed the statute, the
legislative history and case law, concluding that § 35.151 was
intended to be "enforceable through Title II's private cause of
action." Id. at 912 (finding "[p]erhaps most instructive"
legislative intent "that the private cause of action available
under Title II extend to the enforcement of its regulations as
well, insofar as a violation of a regulation resulted in a denial
of access"). In this regard, the panel expressly cited and agreed
with the Tenth Circuit's holding in Chaffin v. Kansas State Fair
Board, 348 F.3d 850
, 857-60 (10th Cir. 2003), upon which
plaintiffs heavily rely. Ibid.[fn*]
On the other hand, the Sixth Circuit found that
28 C.F.R. 35.150(d) created obligations not necessarily required by Title
II and was therefore not privately enforceable. Id. at 913-15.
While a violation of § 35.151 "denies the disabled meaningful
access to public services by perpetuating architectural barriers
that impede such access," a violation of 28 C.F.R. 35.150(d)
"does not in and of itself similarly hinder the disabled." Id.
at 914. It further commented that:
Section 35.150(d) may create a procedural requirement
that encourages public entities to consider and plan
ways in which they will accommodate the disabled, and
it may ultimately facilitate compliance with Title
II, but there is no indication that a public entity's
failure to develop a transition plan harms disabled
individuals, let alone in a way that Title II aims to
prevent or redress. Indeed, it is conceivable that a
public entity could fully satisfy its obligations to
accommodate the disabled while at the same time fail
to put forth a suitable transition plan. Ibid. This applies equally to 28 C.F.R. 35.105. Similarly, the
development of emergency-evacuation plans is not an obligation
imposed by Title II. (Nor, for that matter, is the development of
emergency-evacuation plans a specific requirement of any
Plaintiffs' counsel argued at the hearing that the Congress
expressly endorsed the promulgation of program-accessibility
regulations for Title II consistent with those accompanying the
Rehabilitation Act, found at 28 C.F.R. 39.101 et seq. Yet, even
if Congress intended to adopt similar regulations, it does not
necessarily follow that Congress also intended to create a
private right of action to enforce each and every regulation,
regardless of whether the corresponding regulation under ...