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Cherry v. City College of San Francisco

January 12, 2006

MARGIE CHERRY AND ESTORIA CHERRY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE CITY COLLEGE OF SAN FRANCISCO ("CITY COLLEGE") LAWRENCE WONG, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE BOARD OF TRUSTEES, MILTON MARKS, III, IN HIS OFFICIAL CAPACITY AS VICE-PRESIDENT OF THE BOARD OF TRUSTEES, DR. NATALIE BERG, JOHNNIE CARTER, JR., DR. ANITA GRIER, JULIO J. RAMOS, RODEL E. RODIS, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF TRUSTEES, AND DR. PHILIP R. RAY, JR., IN HIS OFFICIAL CAPACITY AS CHANCELLOR, DEFENDANTS.



The opinion of the court was delivered by: William Alsup United States District Judge

ORDER RE SUMMARY JUDGMENT MOTIONS

INTRODUCTION

In this class action involving mobility-impaired students, the basic question is to what extent, if at all, the City College of San Francisco has violated federal statutes requiring that its new structures meet access guidelines and that it make its programs and services readily-accessible for the disabled. This order resolves issues of federal law dividing the two sides.

STATEMENT

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, imposed on recipients of federal assistance, such as the city college sued in this action, an obligation to remove all architectural barriers preventing the disabled from participation in the grant recipient's programs or activities. Pursuant to implementing regulations issued by the former Department of Health, Education and Welfare, "new" construction after the effective date of June 3, 1977, was required to be designed and constructed in such a manner that the facility was "readily accessible to and usable" by disabled persons. 45 C.F.R. 84.23 (1977). Design and construction in accordance with the American National Standards Institute Standard A117.1--1961 (R 1971) or substantially equivalent standards were permissible. Ibid. Effective 1991, the ANSI standard was superseded by the Uniform Federal Accessibility Standard (UFAS). 55 Fed. Reg. 52136 (Dec. 19, 1990).

On the other hand, buildings and facilities begun before June 3, 1977, were deemed "existing." They were not required to be made accessible so long as the recipient operated its programs or activities, when viewed in their entirety, so as to be "readily accessible" to disabled persons. 45 C.F.R. 84.22 (1977). A recipient was allowed to comply via programmatic "methods." Among others, one method mentioned in the regulations was "reassignment of classes or other services to accessible buildings." Again, a recipient was not required to make structural changes in existing facilities when other methods were effective in providing "readily accessible" programs and services. In choosing among methods, however, it was required to give priority to those methods that offered programs and activities to disabled persons "in the most integrated setting appropriate." Ibid. Finally, when and if any "existing" building (existing or under construction as of June 3, 1977) was "altered," the part altered was to be changed, "to the maximum extent feasible," so as to be readily accessible.

45 C.F.R. 84.23(b) (1977).*fn1 In substance, the Section 504 regulations established two types of possible violations: a "facilities" violation as to new construction and a "program" violation as to existing structures.

Section 504 and its implementing regulations remain in effect today. The relevant agency, for our purposes, is now the Department of Education. Its regulations appear at 34 C.F.R. Part 104 (2005).

With minor differences, these reforms were extended to all "public entities" by Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101, 12131. Title II provided:

Subject to the provisions of this subchapter, 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.

The ADA required the Attorney General to promulgate regulations to implement Title II. 42 U.S.C. 12134. The regulations were promulgated in 1991. They first appeared at 28 C.F.R. Part 39 (1991). Today, they appear at 28 C.F.R. Part 35 (2005). The regulations apply to all public entities, whether or not they receive federal grants. (Thus, both the Section 504 regulations and the Title II regulations apply in this case.)

In most ways here relevant, the implementing Title II regulations tracked the earlier regulations under Section 504. Section 35.149 stated:

Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity.

28 C.F.R. 35.149 (2005).

The existing-versus-new regime was carried forward but with a definitional divide of January 26, 1992. With respect to "new" construction, each facility or "part of a facility" constructed after January 26, 1992, was required to be "designed and constructed in such a manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities . . . ." 28 C.F.R. 35.151(a).

Two Safe Harbors ere Identified

Compliance with either UFAS or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), about which more will be said, was "deemed to comply" with the regulations. Since this language is critical in these motions, the section deserves to be quoted in full:

Accessibility Standards

Design, construction, or alteration of facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR part 101-19.6) or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) (Appendix A to 28 CFR part 36) shall be deemed to comply with the requirements of this section with respect to those facilities, except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of ADAAG shall not apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.

28 C.F.R. 35.151(c) (2005) (emphasis added). This order italicizes the last sentence because it is central to the analysis below.

As for "existing" facilities, i.e., in place or under construction before January 26, 1992, the ADA regulations again tracked the Section 504 regulations. Concerning existing facilities, Section 35.150 provided that a public entity must operate each service, program or activity so that when viewed in its entirety, it is "readily accessible to and usable by individuals with disabilities." It hastened to add that this requirement did "not necessarily" require a public entity to make each of its existing facilities accessible. Nor did it require any action that would threaten the historic significance of a structure or that would result in a "fundamental alteration" in the nature of the service, program or activity. As with the Section 504 regulations, with respect to "existing" buildings, the entity could comply through programmatic "methods":

Methods - (1) General. A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignments of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of § 35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.

28 C.F.R. 35.150(b).

Thus, as with Section 504, a college using some old and inaccessible buildings was allowed to comply by holding all courses with disabled students in new and accessible buildings, to take only one example. If structural changes were required in any existing buildings, the changes were to be made within three years of the effective date of the regulations.

As stated, the Attorney General was charged with promulgating Title II regulations. They were to include "standards applicable to facilities . . . covered by" Title II and were to "be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board. In turn, the Board was tasked with issuing "minimum" guidelines to supplement the "existing Minimum Guidelines and Requirements for Accessible Design" (MGRAD). 42 U.S.C. 12134(c), 12204(a).*fn2

These minimums were ADAAG, issued by the Board simultaneously with the adoption of the Title II regulations by the Department of Justice in 1991. 56 Fed. Reg. 35408, 35694 (July 26, 1991). That these were intended as the "minimums" desired by Congress appears at page 35411 of volume 56 of the Federal Register. See also 63 Fed. Reg. 2000 (Jan. 13, 1998); 69 Fed. Reg. 44084 (July 23, 2004); Paralyzed Veterans of America v. Ellerbee Becket Architects & Engineers, P.C., 950 F. Supp. 389, 391 (D.D.C. 1996). As a general statement, it can be said that ADAAG and UFAS are more alike than different, but they are not identical.

The Board has issued a number of supplements to ADAAG. Most of the supplements have not yet been adopted by the Department of Justice as part of the Title II regulations. See 69 Fed. Reg. 58769 (Sept. 30, 2004). Put differently, only revisions of ADAAG ...


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