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Ashby v. Warrick County School Corp.

United States Court of Appeals, Seventh Circuit

November 5, 2018

Mycal L. Ashby, Plaintiff-Appellant,
Warrick County School Corporation, Defendant-Appellee.

          Argued June 1, 2018

          Appeal 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.

          Before Ripple, Kanne, and Brennan, Circuit Judges.


         Mycal 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 Act.

         The 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.[1] 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 appealed.

         Because 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.[2] 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.[3] The Department's interpretation of its regulations is a reasonable one that offers a loose but practical framework that aids in decisionmaking.

         Upon 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.



         Since 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 mobility.

         Ms. 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.

         The 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.[4] 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 County Museum.

         The 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.

         The 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.

         On the 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.

         The 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.

         In the 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."[5] 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.[6] 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."[7] 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.

         The 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.


         Ms. 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.

         Ms. 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.[8] 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. ยง 35.102. ...

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