ADA Challenge to Segregation of Program Participant

May 20, 2021, Department, by James C. Kozlowski, J.D., Ph.D.

2021 June Law Review ADA Challenge to Segregation of Program Participant 410x410

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In the case of Perez v. Lake County Rowing Association, 2021 U.S. Dist. LEXIS 23945 (M.D. Fla. 1/5/2021), Evelyn Perez, as next friend and grandmother of minor F.V., filed suit against Lake County Rowing Association (LCRA), a Florida nonprofit corporation, and the City of Clermont, Florida (the City), asserting claims for failure to accommodate her grandson in a rowing program in violation of the Americans with Disabilities Act (ADA). 

LCRA was formed on December 11, 2012, as part of an economic development project developed by the Leadership Lake County Class of 2010. The stated purpose of LCRA is “to educate the public about non-motorized boats and rowing sports; to increase community involvement in the same while at the same time effectuating the economic development of Lake County through recruiting and coordinating athletic events; and, to undertake such activities as will further the general purposes described herein.” As part of its purpose, LCRA is tasked with hosting at least one regatta per year in which multiple rowing crews would be invited to participate in a 5K race. LCRA also offers summer camp and after-school programs. LCRA utilizes the City’s boathouse for carrying out its events and programs.

In 2014, the City built the boathouse, boat dock system and related infrastructure. The City entered into a Capital Projects Funding Program with Lake County and applied to Lake County for Tourist Development Taxes to assist with financing the construction of the rowing infrastructure. The boathouse was constructed to assist with economic development of Lake County, permitting LCRA, Central Florida Sports Commission and Lake County Sports Development to host a variety of rowing events. The City owns the boathouse and provides general building and property maintenance for it.

On or about December 9, 2014, the City and LCRA entered into a Management Agreement for a term of five years, which outlined their obligations as to the operations of the boathouse and the related rowing infrastructure. LCRA agreed to pay the City $500 per month and be responsible for “managing, directing, operating and coordinating the daily activities” at the boathouse. LCRA had “exclusive right to possession and management of all interior areas” of the boathouse, subject only to “City’s right to use the outside surrounding areas and its right to enter for maintenance, repair, and use of any docks or mooring facilities located on the lake adjacent to or near” the boathouse. The Management Agreement also required LCRA to ensure that the City complied with its obligations under its agreement with Lake County for the Capital Projects Funding Program. Under the agreement, the City retained responsibility for the unpaved grounds around the boathouse, landscaping, maintenance of restrooms, utilities and structural issues arising out of or related to the boathouse (HVAC, plumbing, structural integrity, roof, etc.).

Learn to Row Program

LCRA hosts a “Learn to Row” summer camp and an after-school program at the boathouse. The summer camp is designed to teach students how to row. The after-school program is a competitive program that involves traveling throughout the state and southeast to compete against other teams. LCRA employees, Knutz and Outlaw, coach the programs.

F.V., a minor diagnosed with autism, participated in LCRA’s summer camp beginning mid-July 2018 through the beginning of August 2018. F.V.’s uncle enrolled F.V. in the summer camp. At the time of enrollment, he informed two females who were taking completed applications that F.V. was autistic. Coach Knutz, however, did not know that F.V. was autistic, but noticed that something was different with F.V. when he started working with him. According to Coach Knutz, during camp F.V. made violent comments about “guns and shooting and blood.” Coach Knutz requested that F.V. stop making those comments, but F.V. was non-responsive. F.V. continued to be non-responsive to the coaches throughout the entire time he was in the program. The coaches decided to pair F.V. with an older partner. The coaches believed the older and more mature athletes would not react to F.V. and would provide rowing support for him as well.

On the last day of the summer camp, Perez learned that LCRA offered an after-school program. She expressed an interest to Coach Knutz in enrolling F.V. in the program. Coach Knutz told Perez that F.V. could not attend the after-school program. Coach Knutz explained that the after-school program did not have the resources to supervise F.V. with the other students. Specifically, Coach Knutz stated that they try to keep a specific coach-to-rower ratio.

Coach Outlaw also agreed that F.V. was not capable of rowing in team boats in a competitive program. Because F.V. was not following directions and non-responsive in the summer program, F.V. would need to have his own coach when in the boat, as well as direct supervision when the team was doing its exercise on land. According to Perez, Coach Knutz stated, “I don’t think it is a good idea, F.V. is not competition material, competition ready to row, and it is just not a good idea.”

Perez decided not to submit an application for F.V. to participate in LCRA’s after-school program. F.V. was, however, invited to participate in LCRA’s summer camp again.

ADA Complaint

On August 13, 2018, Perez submitted an ADA complaint with the City. The City’s public works director responded to Perez’s complaint and informed her that her complaint related to a program offered by LCRA, which is an entity separate from the City. The City informed Melissa Coleman, the president of LCRA at the time, of Perez’s complaint. Coleman, Paul McPherson (founding member of LCRA) and Coach Knutz subsequently met with Perez to discuss her complaint.

Coleman agreed to include F.V. in the after-school program and provide F.V. individual lessons. Coleman stated that LCRA would “still have him practice, be part of the team, be able to get the uniform, and be able to take part in off-the-water activities together.” But, F.V. would have to have one-to-one instruction for the safety of the rowers.

According to Perez, she was not seeking an accommodation for F.V. so that he could participate in the after-school program. She denied seeking any accommodation from LCRA and any modifications in the training of LCRA’s personnel. Perez only sought to have LCRA integrate F.V. into the after-school program. Specifically, she stated that she “just wanted him to row after school” and that “he doesn’t need any accommodations to row” because he can row. Perez stated that she would like F.V. “to be with his peers and in a team setting and be accepted and not segregated and go off on a boat by himself and row with a man that he doesn’t even know.” Perez stated that she did not request any accommodations for F.V. because, in her opinion, he did not need any accommodations to participate in the after-school program.

Perez also denied seeking a modification to any of the City’s policies, practices or procedures. Perez stated that she was seeking from the City the same thing she was seeking from LCRA. She was only requesting for F.V. “to be accepted like any other child.”

A resolution was not reached at the meeting and Perez did not get back to LCRA about its proposal. LCRA tried to coordinate a follow-up meeting with F.V.’s family, but there was no response.

ADA Titles

As cited by the federal district court, the ADA covers three main types of discrimination, each of which is addressed in one of the statute’s three main subchapters:

Title I prohibits discrimination in private employment; Title II prohibits discrimination by public entities (state or local governments); and Title III prohibits discrimination by a “place of public accommodation,” which is a private entity that offers commercial services to the public. 

In this particular instance, the ADA claims involved a Title II claim against the City and a Title III claim against LCRA.

Title II Claim Against the City

As cited by the federal district court, Title II of the ADA states: “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. Accordingly, as described by the court, Title II requires the following for a plaintiff to establish a Title II ADA claim:

(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability. 

Further, when a plaintiff alleges discrimination based on a public entity’s refusal to provide reasonable accommodation, the court noted: “Plaintiff must also establish that Plaintiff requested an accommodation and that the public entity failed to provide a reasonable accommodation.”

In addition, proof of a Title II claim would only entitle a plaintiff to injunctive relief; i.e., a court order prohibiting discriminatory conduct in violation of the ADA. In this case, Perez was seeking monetary damages. To obtain damages under Title II, the court would require Perez to prove the City “engaged in intentional discrimination, which requires a showing of deliberate indifference.” Moreover, to establish deliberate indifference, plaintiff Perez would have to prove the defendant City “knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.”

City Service Program 

As noted by the federal district court: “Individuals and private entities are not subject to liability under Title II of the ADA.” Instead, Title II of the ADA only governs the actions of a “public entity.” In this particular instance, the City did not dispute that it is a “public entity.” The City, however, questioned whether the LCRA “Learn to Row” program at the City’s boathouse constituted “a public entity’s services, programs, or activities” under Title II.

While Title II applied to “all services, programs, or activities provided or made available by public entities,” the federal district court acknowledged the expressed statutory language in the ADA does not define “services, programs, or activities.” On the other hand, the court noted that federal courts have broadly construed “programs, services, or activities” of a public entity to also include “all discrimination by a public entity, regardless of the context.”

In this case, Perez claimed “F.V. was excluded from participating in the after-school rowing program because LCRA recommended a separate program with a special needs coach to be with F.V. in a segregated class.” In so doing, Perez argued the City was liable for discrimination under Title II of the ADA because the after-school rowing program was a service provided by the City. Perez based this claim on testimony of the city manager who had indicated the City paid for electric, sewage, landscaping, security and maintenance of the boathouse. Moreover, the boathouse reflected one of Lake County’s priorities to increase tourism in the county.

In the opinion of the federal district court, Perez had failed to “demonstrate how the City’s responsibility for those expenses and the county’s interest in increasing tourism supports the conclusion that the after-school program at issue is a program offered by the City.” While the City retained responsibility for the maintenance of the exterior of the boathouse, structural issues and utilities under the Management Agreement with LCRA, the court noted testimony indicating LCRA remained solely responsible for “managing, directing, operating, and coordinating the daily activities” at the boathouse and paid the City to use it:

One of the founders and former president of LCRA, testified that LCRA, not the City, offers the rowing programs and that LCRA only utilizes the City’s boathouse to facilitate its programs. She further testified that the intent of the Management Agreement between the City and LCRA is to memorialize the agreement “with respect to the use of the boathouse and the tourism development council fund application and requirements.”

Further, in the opinion of the court, the pretrial record did not establish that the City had contractually delegated its responsibility for the operation of services, activities and programs, which the City would have otherwise been responsible for itself. Instead, the federal district court found “the record only establishes that the City contractually agreed to provide the venue for LCRA to host its rowing events.” As a result, the court rejected the claim that the after-
school rowing program was a service provided by the City.

City as Landlord

Perez also had claimed the City was liable for discrimination under Title II of the ADA because “the City is the owner and landlord of the boathouse.” As characterized by the court, the issue was, therefore, whether “the City is liable merely because of its status as the owner of the boathouse.” According to the court: “A landlord incurs liability only if the landlord implements a discriminatory policy, practice, or procedure.” In so doing, however, the court acknowledged: “the ADA does not require a landlord to ensure that a tenant (or group of tenants) includes every neighbor at an event.” In this case, the court found “the City’s only connection to the after-school program at issue is the City’s ownership of the boathouse.”

Under Title II of the ADA, Perez had claimed the City has an independent liability as the owner or lessor of the boathouse. The federal district court acknowledged that federal courts have held “a public entity is subject to Title II liability because it is considered to be a landlord.” The court, however, noted these claims of discrimination under the ADA were based upon “the lack of accessibility to facilities,” such as a theater or sports arena owned by a public entity, for disabled individuals.

In this particular case, the city manager had testified that “the City essentially functions as a landlord and does not control what LCRA does inside the boathouse.” Moreover, the federal district court noted: “The annual regatta, summer camps, and after-school programs are programs provided by LCRA, not the City.” Further, the city manager had testified “the purpose of the boathouse was for the City to rent it.” In addition, the city manager indicated “any individuals who participate in any of the activities of LCRA do not sign a waiver with the City.”

Under these circumstances, the federal district court found Perez had not claimed that “F.V. was excluded or denied access to the boathouse” by the City. Instead, Perez claimed “F.V.’s ability to participate as a competitor in LCRA’s after-school program” was being denied. Even if the LCRA after-school program was not a program offered by the City, Perez had claimed Title II of the ADA prohibits all discrimination by a public entity, regardless of the context.

The federal district court, however, found Perez had “not identified any discriminatory policy, practice, or procedure of the City.” In particular, the court noted Perez had “not provided any evidence to suggest that F.V. was subject to any discrimination by the City” in providing access to the boathouse.

The federal district court, therefore, rejected Perez’s Title II claim against the City and granted the City’s motion for summary judgment.

Individualized Support Accommodation

In her Title III ADA claim against LCRA, Perez claimed LCRA “intentionally failed to make reasonable modifications in its policies, practices, and/or procedures, upon repeated requests, as necessary to afford Plaintiff with its goods, services, facilities, privileges, advantages, or accommodations.”

In so doing, Perez filed a motion to exclude the opinion of LCRA’s expert, Dr. Jill Kelderman, a pediatric neuropsychologist and board certified in clinical neuropsychology. Dr. Kelderman was retained by LCRA to provide an overview of the Autism Spectrum Disorder and to opine on what type of accommodations, if any, F.V. would require in order to participate in LCRA’s after-school program.

Dr. Kelderman opined that F.V. had significant skill deficits that impacted his ability to independently function successfully in a competitive after-school program and that he required individual coaching and instruction, which incorporated Applied Behavior Analysis (ABA) to potentially develop adequate rowing skills.

ABA is an evidence-based intervention for Autism Spectrum Disorder (ASD) that improves social communication and adaptive behaviors while decreasing the severity and frequency of maladaptive behaviors.

Perez claimed Dr. Kelderman had never met with F.V. or interviewed any of his family members to determine his capacity outside of an academic setting. Perez further contended Dr. Kelderman’s testimony was speculative because she had relied upon F.V.’s school records. Perez, however, did not challenge Dr. Kelderman’s qualification to assess individuals with autism.

As characterized by the court, Perez had apparently objected to Dr. Kelderman’s opinion because she “did not provide any opinion on integrating F.V. into the rowing program.” The federal district court rejected this challenge to Dr. Kelderman’s expert witness testimony. In so doing, the court found Dr. Kelderman’s opinion was relevant in determining the required reasonable accommodation for F.V.’s participation in LCRA’s rowing program. According to Dr. Kelderman, F.V. would require “individual coaching and instruction with an individualized plan evidence-based strategy, such as ABA, would be helpful to developing an individual plan for him.”

Consistent with Dr. Kelderman’s opinion, the court further noted the pretrial record indicated “F.V. utilizes individual attention in other activities as well.” In particular, the court found undisputed evidence that “F.V. cannot travel on a school bus without adult supervision and requires individualized support at school.”

No Accommodation Requested

In an ADA claim, the federal district court noted: “The plaintiff bears the burden of proving not only that he is disabled but also that his requested modification is both ‘reasonable’ and ‘necessary.’” Moreover, the court acknowledged: “No ADA violation occurs, however, when the private entity demonstrates that the requested modifications would ‘fundamentally alter the nature of’ its service and facilities.”

In this particular instance, the court found Perez had “neither identified nor requested an accommodation.” On the contrary, Perez had “repeatedly acknowledged that she is not seeking an accommodation for F.V.” While Perez had “admittedly never requested an accommodation from LCRA,” Perez claimed “LCRA’s suggestion to segregate, rather than integrate, F.V. in the after-school program violates the ADA.”

Within the context of reasonable accommodations required by the ADA, the federal district court noted the LCRA coaches had “recommended that F.V. would benefit from a one-on-one instruction while in a single-person boat.” In so doing, the court found “LCRA’s recommendation would still allow F.V. to be a part of the team, including wearing the uniform and participating in all team activities.” Accordingly, in the opinion of the court, the pretrial record was “void of evidence that LCRA denied F.V. reasonable participation in the after-school program because of his disability.” The federal district court, therefore, concluded “LCRA is entitled to summary judgment in its favor.”

Having found no evidence of discrimination in violation of either Title II or Title III of the ADA, the federal district court entered final judgment in favor of defendant City of Clermont and defendant Lake County Rowing Association.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Link to law review articles archive (1982 to present).