Mycal L. Ashby, Plaintiff-Appellant,
Warrick County School Corporation, Defendant-Appellee.
June 1, 2018
from the United States District Court for the Southern
District of Indiana, Evansville Division. No.
3:16-cv-00190-RLY-MPB - Richard L. Young, Judge.
Ripple, Kanne, and Brennan, Circuit Judges.
RIPPLE, CIRCUIT JUDGE
Ashby's son was a member of his elementary school choir
for several years. In both 2014 and 2015, the choir agreed to
perform a Christmas concert at a local history museum. The
museum is located in a historic building and, at the time of
both concerts, was not accessible to persons with
disabilities. Ms. Ashby, who uses a wheelchair, therefore was
unable, in both years, to attend the Christmas concert and to
see her son and his schoolmates sing. She consequently
brought this action against the Warrick County School
Corporation, alleging discrimination under the Americans with
Disabilities Act ("ADA") and the Rehabilitation
parties filed cross-motions for summary judgment. Focusing on
the language of the statute and implementing regulation, the
district court concluded that the Christmas concert was not a
"service, program, or activity of the Warrick
Schools. Nor was the concert an activity
"provided or made available" by the School
Corporation. 28 C.F.R. § 35.102. It therefore granted
Warrick Schools' motion for summary judgment. Ms. Ashby
resolution of the appeal turns on the proper interpretation
and application of statutory and regulatory language on which
we have little precedent, we invited the Department of
Justice, the agency charged with the administration of the
statute, to submit a brief as amicus curiae. The Department
accepted our invitation and submitted a brief. The Government
notes that when a public entity offers a program in
conjunction with a private entity, the question whether a
service, program, or activity is one "of" a public
entity is a complicated, fact-based one. The Government's
brief suggests that there is a "spectrum" of
possible relationships ranging from a "true joint
endeavor" on one end to participation in a wholly
private event on the other. The Department's
interpretation of its regulations is a reasonable one that
offers a loose but practical framework that aids in
close examination of the record, it is clear to us that the
district court correctly determined that the event in
question was not a service, program, or activity provided or
made available by the Warrick County School Corporation.
Accordingly, its judgment is affirmed.
infancy, Ms. Ashby has had transverse myelitis, a condition
that renders her paralyzed from the chest down. She cannot
stand or walk and relies on a motorized wheelchair for
Ashby and her husband, Robert, have a son who attended Loge
Elementary from 2011-16. He participated in the school choir
when he was in the fourth and fifth grades, during the
2014-15 and 2015-16 school years. Ms. Ashby attended school
events, and her disability was known to school officials.
Loge choir was an extracurricular activity offered by the
school. Participation was voluntary, and students received no
academic credit. The school's music teacher, Abby Roach,
led the choir as a volunteer; she was not compensated for the
additional time that she devoted to this activity. The choir
practiced weekly after school, and Roach sought to introduce
the children to singing in an "informal"
format. Nevertheless, the choir performed for
others on a few occasions during the year, including during a
Veteran's Day program and as a part of the school's
Fine Arts Night; both of these events were held at Loge
Elementary. The students also performed during the day at a
local nursing home as a community service. In both of the
school years in which the Ashbys' son was a choir member,
the choir also performed a Christmas concert at the Warrick
Warrick County Museum is a local historical museum. It is not
affiliated with the Warrick County School Corporation. The
museum is housed in a 1901 building, and, at all times
relevant to the present case, it had no ramp access and no
elevator, although they have since been installed. For
several years, the museum decorated for the holidays and held
a series of December events to promote and fundraise on its
own behalf. Among the holiday events were Christmas concerts
at which local elementary school choirs performed, each on
its own night. The museum coordinated these events by
contacting local schools and inviting each to select from
available dates. The museum advertised the concerts in its
newsletters and publicized them in local media.
Loge choir participated in this program for a number of
years. In fall 2014, it again received an invitation from
Gretchen Powers, a museum volunteer and member of the Board,
and Roach selected a date for her students to participate.
The school then sent home a flyer to choir-student families
and placed the event on the school calendar. The children
were instructed to dress up, and the evening performance was
open to family members and others.
night of the 2014 Christmas performance, the Ashby family
arrived at the museum and quickly discovered that there was
no handicapped parking and no ramp up to the door. Mr. Ashby
went up to Roach, who was standing near the door, and a
representative of the museum, and both informed him that the
museum was not accessible. Ms. Ashby would not be able to
access the upper floor where the concert would be held. With
little time before the program, Mr. Ashby drove his
distraught wife to a local Wal-Mart where she waited while
her son performed with his choir. Following the concert, Mr.
Ashby spoke to both Roach and Lynn Pierce, the Loge
principal, and expressed his displeasure about the
inaccessibility of the concert venue. He followed up the next
day with a call to the principal to discuss the matter.
choir repeated the program, in some form, at a local nursing
home. Although the fifth grade class held its own holiday
program, the choir's only holiday performances were at
the museum and the nursing home.
fall of 2015, the museum again contacted Roach and sought to
schedule school choirs for performances at the museum. In her
initial mid-September email to schedule concerts, Powers
informed the choir directors that the museum was "in the
process of installing [an] elevator which should be up and
running in just a few weeks." By mid-October, her email
confirming the selected dates also stated that she thought
that she could "safely say the elevator will be
available" at the time of the concerts in
December. In early December, the choir director of a
different school, Stephanie Wiedrich, contacted Powers to
inquire whether the elevator was operational because she was
considering bringing risers for her students to stand on.
Powers responded, "[n]o elevator." This final
exchange appears to have been between Powers and Wiedrich
alone; no one at Loge received a copy. Roach and Pierce both
testified that they did not follow up with the museum to
determine whether the elevator was operational as the concert
date approached. Mr. Ashby approached both Roach and Pierce
in the weeks before the concert, and both informed him,
incorrectly, that the museum was accessible.
2015 concert for the Loge choir at the museum resulted in a
similar situation for the Ashbys. Upon their arrival at the
museum, they were disappointed to find that, despite the
assurances that they had received, the concert was
inaccessible to Ms. Ashby.
Ashby brought this action against the Warrick County School
Corporation in September 2016. She sought compensatory
damages for intentional disability discrimination under Title
II of the ADA and Section 504 of the Rehabilitation Act,
alleging that the School Corporation had violated both
statutes by allowing the Loge choir to perform at a building
that was inaccessible to persons with disabilities.
Ashby moved for partial summary judgment on the question of
liability; the School Corporation filed a cross-motion for
summary judgment. In considering the motions, the district
court first examined whether the Christmas concert was a
"service, program, or activity" of the Warrick
Schools. The court acknowledged that the statute
itself did not define the term and that courts have construed
it broadly. Indeed, the parties were in agreement that the
concert was a "service, program, or activity."
Their disagreement was over whether it was a "service,
program, or activity" of the Warrick Schools.
To resolve this second interpretive problem, the court turned
to the regulations, which said that the statute placed
responsibility on a public entity for activities that it
"provided or made available." 28 C.F.R. §