Donnika Ivy v. Michael Williams

Case: 14-50037 Document: 00512980477 Page: 1 Date Filed: 03/24/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 24, 2015

No. 14-50037

Lyle W. Cayce

Clerk

DONNIKA IVY; BERNARDO GONZALEZ; TYLER DAVIS, as next friend of

Juana Doe, a minor; ERASMO GONZALEZ; ARTHUR PROSPER, IV,

Plaintiffs - Appellees

v.

COMMISSIONER MICHAEL WILLIAMS, in his official capacity as head of

the Texas Education Agency,

Defendant - Appellant

Appeals from the United States District Court

for the Western District of Texas

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Plaintiffs-appellees Donnika Ivy (“Ivy”) and the other named plaintiffs

(collectively, the “named plaintiffs”) are deaf individuals who brought a

putative class action against defendant-appellant Michael Williams in his

official capacity as head of the Texas Education Agency (the “TEA”). They

request injunctive and declaratory relief requiring the TEA to bring driver

education into compliance with the Americans with Disabilities Act (“ADA”)

and Rehabilitation Act. The district court denied the TEA’s motion to dismiss

but certified its order for immediate appeal under 28 U.S.C. § 1292(b). We

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No. 14-50037

granted leave for the TEA to file an appeal, and we now REVERSE and

RENDER judgment dismissing the case.

FACTS AND PROCEEDINGS

In Texas, individuals under the age of 25 cannot obtain driver’s licenses

unless they submit a driver education certificate to the Department of Public

Safety (“DPS”). Tex. Transp. Code Ann. § 521.1601. 1 Driver education

certificates, in turn, are only available from private driver education schools

licensed by the TEA. Tex. Educ. Code Ann. § 1001.101(a). 2 The named

plaintiffs are all deaf individuals who contacted a variety of TEA-licensed

1We note that § 521.1601 contains an error. The currently-effective version refers to

Texas Education Code § 1001.101(a)(1) and (a)(2), even though there are not two subparts in

the currently-effective version of § 1001.101(a). This problem was produced by the 2013

amendment to the Texas Education Code, which eliminated subsections (1) and (2) from

§ 1001.101. Compare Act of June 14, 2013, 2013 Tex. Sess. Law Serv. Ch. 716, § 1 (H.B.

3483), with Act of June 19, 2009, 2009 Tex. Sess. Law Serv. Ch. 1413, § 1 (S.B. 1317).

The parties do not mention this error in the statute, however. We assume without

deciding that the parties are correct that the overall effect of the statute is that individuals

18 years of age or older can take the driver education class for adults that is provided for in

Texas Education Code § 1001.1015, even though § 1001.1015 is not mentioned in the

currently-effective version of Texas Transportation Code § 521.1601.

2 There are two exceptions that allow certain young adults to obtain driver education

certificates through sources other than private driver education schools. See Tex. Transp.

Code Ann. § 521.1601. First, individuals may receive driver education certificates by taking

a class taught by a parent or another specified close relative. Id. § 521.205. All parties

assume that the parent-taught course is available only for individuals who are under 18 years

old, but the statute itself does not appear to limit parent-taught courses to those under 18.

See id. § 521.1601 (stating that those under 25 years of age must: (1) take a parent-taught

class, public driver education class, or private minor driver education class, or (2), if they are

over 18 years old, take a private minor or adult driver education class). We assume without

deciding that the parent-taught class is not available to those who are over 18 years old. If

that is the case, parent-taught classes are not an option for any of the named plaintiffs

because the only named plaintiff who was under 18 when the lawsuit was filed did not have

a parent or other specified relative who could offer the parent-taught class.

Second, individuals can obtain driver education certificates from driver education

classes offered at public schools. Tex. Educ. Code Ann. § 29.902. It is unclear whether any

of the named plaintiffs are public school students who can receive driver education

certificates through these public school programs. But the TEA has not argued that the

named plaintiffs had this public school option available. We assume without deciding that it

was unavailable to the named plaintiffs.

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private driver education schools, all of which informed the named plaintiffs

that the schools would not accommodate them. 3 Because they cannot obtain

driver education certificates, the named plaintiffs cannot obtain driver’s

licenses.

A Deafness Resource Specialist with the Texas Department of Assistive

and Rehabilitative Services informed the TEA of the inability of deaf

individuals like the named plaintiffs to receive driver education certificates.

But the TEA declined to intervene, stating that it was not required to enforce

the ADA and that it would not act against the private driver education schools

unless the United States Department of Justice (“DOJ”) found that the schools

had violated the ADA. The Deafness Resource Specialist filed a complaint

against the TEA with the DOJ, which the DOJ apparently dismissed.

Ivy filed a lawsuit in federal district court against the TEA and a private

driver education school, requesting injunctive and declaratory relief against

both parties under the ADA. She later dismissed the private driver education

school from the lawsuit. After some additional procedural steps that are not

relevant here, the lawsuit became a putative class action with multiple named

plaintiffs and the TEA as the sole remaining defendant. The live pleading, the

Fourth Amended Complaint, requests injunctive and declaratory relief

requiring the TEA to bring driver education into compliance with the ADA.

The TEA filed a motion to dismiss for want of jurisdiction and for failure to

state a claim. The district court denied these motions, certified its order for

interlocutory appeal, and stayed the case. We granted the TEA leave to file an

interlocutory appeal.

3At least one of the named plaintiffs has only a limited ability to read English, so a

written driver education course would not be feasible.

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STANDARD OF REVIEW

We review de novo the denial of a motion to dismiss for want of

jurisdiction and for failure to state a claim. Young v. Hosemann, 598 F.3d 184,

187–88 (5th Cir. 2010).

DISCUSSION

We first consider the TEA’s argument that the named plaintiffs lack

standing to bring their claims. Finding that they have standing, we next

consider whether they adequately state a claim upon which relief can be

granted. We conclude that they do not, so we dismiss the case.

A. Standing

There are three requirements for standing: (1) the plaintiff must have

suffered an “injury in fact,” (2) there must be “a causal connection between the

injury and the conduct complained of—the injury has to be fairly traceable to

the challenged action of the defendant, and not the result of the independent

action of some third party before the court,” and (3) “it must be likely, as

opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal

quotation marks and alterations omitted).

Here, the injury alleged is quite obvious—the named plaintiffs’ inability

to receive driver education certificates, which in turn prevents them from

receiving driver’s licenses. The TEA challenges the named plaintiffs’ standing

under the second and third prongs. The TEA argues that there is no causal

connection between the named plaintiffs’ injury and the TEA’s conduct because

it is the driver education schools, not the TEA, that refuse to accommodate the

named plaintiffs. This contention is meritless. While driver education schools’

actions are one cause of the injury, it is equally clear that the named plaintiffs’

alleged injuries are also “fairly traceable” to the TEA’s failure to inform private

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driver education schools of their ADA obligations and its failure to deny

licenses to driver education schools that violate the ADA. 4

The TEA next argues that a court order could not redress the plaintiffs’

alleged injuries. It advances three main arguments in support of this

contention. First, it argues that it does not have the statutory authority under

Texas law to ensure private driver education schools’ compliance with the

ADA. We disagree; multiple provisions of Texas law empower the TEA to

perform actions that would likely redress the named plaintiffs’ injuries. For

example, the TEA can issue a license to a driver education school only if the

school “complies with all county, municipal, state, and federal regulations,

including fire, building, and sanitation codes and assumed name registration.”

Tex. Educ. Code Ann. § 1001.204(7). Thus, the TEA has the power to withhold

licenses from driver education schools that fail to comply with the DOJ’s ADA

regulations. 5 Further, Texas law provides that the TEA “has jurisdiction over

and control of” driver education schools and is allowed to “adopt and enforce

rules necessary to administer” the chapter on driver education. Tex. Educ.

Code Ann. §§ 1001.051; 1001.053(a)(3). These provisions give the TEA the

power to enact regulations relating to ADA compliance in driver education

schools.

4 It is a separate question whether the TEA was legally required to perform these

actions. That question goes to the merits of the case, not standing.

5 The TEA argues that the meaning of “all county, municipal, state, and federal

regulations” is limited by the specification that these regulations “includ[e] fire, building, and

sanitation codes and assumed name registration.” See id. § 1001.204(7). We disagree. Under

Texas law, “including” is defined as a “term[ ] of enlargement and not of limitation or

exclusive enumeration,” and its use “does not create a presumption that components not

expressed are excluded.” Tex. Gov’t Code Ann. § 311.005(13). Hence, the list following the

word “including” does not limit the plain meaning of the phrase “all . . . federal regulations,”

a term that clearly encompasses the DOJ’s ADA regulations.

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Second, the TEA argues that a federal court cannot order it to ensure

that driver education schools comply with the ADA because the court would

effectively be commandeering the state into implementing a federal program.

This argument misses the mark. While the federal government cannot require

states to implement a federal program, the federal government can require the

states to comply with federal law. Reno v. Condon, 528 U.S. 141, 150-51 (2000).

The named plaintiffs are arguing that driver education schools are a “service,

program, or activity” of the TEA. If they are correct, requiring the TEA to

comply with the ADA in providing driver education would only require the

state itself to comply with federal law, so the anti-commandeering doctrine

would not be implicated.

Third, the TEA argues that withholding or revoking licenses from driver

education schools would only shut down schools, not improve their compliance

with the ADA. Similarly, the TEA argues that any potential fines would not

necessarily change the schools’ behavior. But it seems highly unlikely that all

driver education schools would choose to shut their doors or accept fines rather

than comply with the ADA. Instead, it is likely that the TEA’s action would

help redress the named plaintiffs’ injuries. Thus, the redressability

requirement for standing is satisfied.

B. Failure to State a Claim

The named plaintiffs’ lawsuit fails on the merits, however. They sued

under both the Rehabilitation Act and Title II of the ADA. It is uncontested

that the TEA receives federal funding, which is a prerequisite for

Rehabilitation Act coverage. See 29 U.S.C. § 794(a), (b)(1)(A). Besides this

special prerequisite for the Rehabilitation Act, the ADA and Rehabilitation Act

“are judged under the same legal standards, and the same remedies are

available under both Acts.” Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010)

(per curiam). Further, “[t]he parties have not pointed to any reason why Title

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II and [the Rehabilitation Act] should be interpreted differently.” Frame v.

City of Arlington, 657 F.3d 215, 224 (5th Cir. 2011) (en banc). Thus, “[a]lthough

we focus primarily on Title II, our analysis is informed by the Rehabilitation

Act, and our holding applies to both statutes.” Id.

Title II of the ADA provides that “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. It is

uncontested that the TEA is a public entity and that the named plaintiffs are

qualified individuals with disabilities. The key question is whether the named

plaintiffs have been “excluded from participation in or . . . denied the benefits

of the services, programs, or activities of [the TEA].” Id. To answer that

question, we must decide whether driver education is a service, program, or

activity of the TEA. We hold that it is not, although this is a close question for

which the statutes, regulations, and case law provide little concrete guidance.

Starting with the plain text of Title II of the ADA, the phrase “services,

programs, or activities of a public entity” is undefined. The Supreme Court

has interpreted the phrase with reference to what “services, programs, or

activities” are provided by the public entity. See Pa. Dep’t of Corr. v. Yeskey,

524 U.S. 206, 210 (1998) (holding that prisons have “programs, services, or

activities” because they “provide inmates with many recreational ‘activities,’

medical ‘services,’ and educational and vocational ‘programs’”). Here, the TEA

itself does not teach driver education, contract with driver education schools,

or issue driver education certificates to individual students. Instead, the TEA

licenses and regulates private driver education schools, which in turn teach

driver education and issue certificates. Thus, the TEA’s program provides the

licensure and regulation of driving education schools, not driver education

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itself. Title II of the ADA therefore suggests that driver education is not a

program, service, or activity of the TEA.

The Rehabilitation Act does define “program or activity,” defining it as

“all the operations of” a public entity. 29 U.S.C. § 794(b). In the context of

interpreting this definition, we have explained that “Webster’s Dictionary

broadly defines ‘operations’ as ‘the whole process of planning for and operating

a business or other organized unit,’ and defines ‘operation’ as ‘a doing or

performing esp[ecially] of action.” Frame, 657 F.3d at 227 (alteration in

original) (quoting Webster’s Third New International Dictionary 1581 (1993)).

Here, as explained above, the TEA does not operate or perform driver

education because it does not teach driver education or contract with the

schools that do so. Thus, driver education seems to fall outside of the ambit of

the Rehabilitation Act’s definition of “program or activity.”

Turning to the regulations, the ADA tasks the Attorney General with

promulgating regulations that implement Title II. 42 U.S.C. § 12134(a). 6

Unfortunately, these regulations do not further define what it means to be a

service, program, or activity of a public entity.

The most relevant regulation is 28 C.F.R. § 35.130(b)(1)(v). Section

35.130(b)(1) provides that a public entity cannot discriminate against qualified

individuals with disabilities “in providing any aid, benefit, or service,” whether

the state acts “directly or through contractual, licensing, or other

arrangements.” Subsection (v), which is not cited by the parties, provides that

a state may not “[a]id or perpetuate discrimination against a qualified

individual with a disability by providing significant assistance to an agency,

organization, or person that discriminates on the basis of disability in

6 The Attorney General’s regulations are eligible for Chevron deference. Chevron,

U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842–43 (1984).

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providing any aid, benefit, or service to beneficiaries of the public entity’s

program.” 28 C.F.R. § 35.130(b)(1)(v).

But the regulations simply beg the ultimate question here. Section

35.130(b)(1) does not allow a state to discriminate “in providing any aid,

benefit, or service,” but it does not define what it means for the state to

“provid[e]” an “aid, benefit, or service.” As detailed above, the TEA does not

provide driver education. Similarly, section 35.130(b)(1)(v) prohibits a state

from aiding entities that discriminate against “beneficiaries of the public

entity’s program,” but it does not define what it means for a program to be the

“public entity’s.” It does not seem that a program of driver education belongs

to the TEA.

Another regulation provides that “[t]he programs or activities of entities

that are licensed or certified by a public entity are not, themselves, covered.”

28 C.F.R. § 35.130(b)(6). But we agree with the named plaintiffs that this

statement does not automatically immunize licensed activities from the ADA’s

gamut, given that the regulations also provide that a public entity cannot

discriminate “directly or through contractual, licensing, or other

arrangements.” 28 C.F.R. § 35.130(b)(1).

Looking further to the interpretative guidance provided by the DOJ, the

DOJ has specifically stated that a public entity “is not accountable for

discrimination in the employment or other practices of [a company licensed by

the public entity], if those practices are not the result of requirements or

policies established by the [public entity].” Department of Justice, Title II

Technical Assistance Manual § II-3.7200, available at

http://www.ada.gov/taman2.html (last visited Feb. 19, 2015). 7 Here, any

7 The DOJ’s interpretative guidance is eligible for Skidmore deference. Christensen v.

Harris Cnty., 529 U.S. 576, 587 (2000) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944)).

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failure of the driver education schools to comply with the ADA or

Rehabilitation Act cannot be said to be “the result of requirements or policies

established by the” TEA. Instead, the named plaintiffs’ claim is at most that

the TEA’s failure to establish requirements or policies has allowed private

driver education schools to be inaccessible. Thus, the DOJ’s interpretative

guidance indicates that the TEA is not accountable for the driver education

schools’ inaccessibility because the TEA’s requirements and policies have not

caused it.

Finally, as to case law, the named plaintiffs cite two lottery cases as their

primary authority for finding that driver education is a program of the TEA.

In those state supreme court cases, each court held that the state lottery was

a program of the state lottery commission, so the ADA required the commission

to make the lottery program accessible. Winborne v. Va. Lottery, 677 S.E.2d

304, 307–08 (Va. 2009); Paxton v. State Dep’t of Tax & Revenue, 451 S.E.2d

779, 784–85 (W. Va. 1994). Thus, even though the inaccessible lottery agents

were private parties, the commission could be held liable under the ADA

because it ran a lottery program that was inaccessible as a whole. Winborne,

677 S.E.2d at 307–08; Paxton, 451 S.E.2d at 785.

But there are two important differences between these lottery cases and

this case. First, there, it was clear that the lottery commissions were running

lotteries, not just licensing lottery agents. After all, the lottery commissions

themselves conducted the lotteries; the agents that sold the tickets were just

one component of that entire program. Here, in contrast, the TEA just as

clearly does not provide any portion of driver education; it merely licenses

driver education schools. Second, in the lottery cases, the lottery commissions

contracted with the lottery providers, which were paid commissions for acting

as agents for the state. Winborne, 677 S.E.2d at 307; Paxton, 451 S.E.2d at

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785. Here, there is no such agency or contractual relationship. 8 These cases

are therefore unpersuasive.

The only other cases that have held a public entity liable for a private

actor’s inaccessibility involved similar situations where the private actors had

a contractual or agency relationship with the public entity. See, e.g., Castle v.

Eurofresh, Inc., 731 F.3d 901, 910 (9th Cir. 2013) (holding that state could be

liable under ADA for inaccessibility of company it contracted with to provide

state inmates with jobs); Indep. Hous. Servs. of S.F. v. Fillmore Ctr. Assocs.,

840 F. Supp. 1328, 1344 (N.D. Cal. 1993) (holding that “[t]he crucial

distinction” that rendered the public entity liable for a private actor’s

inaccessibility was that the public entity “ha[d] contracted with [the private

actor] for [it] to provide aid, benefits, or services to beneficiaries of the [public

entity’s] redevelopment program”). In the absence of such a contractual or

agency relationship, courts have routinely held that a public entity is not liable

for a licensed private actor’s behavior. See, e.g., Noel v. N.Y.C. Taxi &

Limousine Comm’n, 687 F.3d 63, 72 (2d Cir. 2012) (holding that public entity

is not liable for inaccessible taxi companies it licenses and regulates); Bascle v.

Parish, No. 12-CV-1926, 2013 WL 4434911, at *5–6 (E.D. La. Aug. 14, 2013)

(same); Reeves v. Queen City Transp., Inc., 10 F. Supp. 2d 1181, 1187 (D. Colo.

1998) (holding that public utility company is not liable for inaccessible bus

company it licenses where there is no contract between them); Tyler v. City of

Manhattan, 849 F. Supp. 1429, 1441–42 (D. Kan. 1994) (holding that city is

not liable for inaccessible restaurants and liquor stores it licenses).

8 The amici seem to argue that a contractual or agency relationship exists because

driver education schools pay significant fees to be licensed by the TEA. We disagree. If driver

education schools were acting as agents of the TEA in administering its driver education

program, we would expect the TEA to pay the schools, not the other way around.

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The importance of a contractual or agency relationship is also

demonstrated by the DOJ’s interpretative guidance, which provides three

examples of a private actor’s activities being covered by Title II because of the

“close relationship” between the private actor and a public entity. See

Department of Justice, Title II Technical Assistance Manual § II-1.3000. All

three examples involve some form of contractual or agency relationship: a

restaurant with a “concession agreement with a State department of parks”; a

“joint venture” between a city and a private corporation; and a nonprofit

organization that runs group homes “under contract with a State agency.” Id.

Thus, we conclude that the lack of a contractual or agency relationship between

driver education schools and the TEA cuts strongly against holding that driver

education is a program of the TEA.

The named plaintiffs essentially argue that the TEA’s pervasive

regulation and supervision of driver education schools transforms these

schools into agents of the state. But we hold that the mere fact that the driver

education schools are heavily regulated and supervised by the TEA does not

make these schools a “service, program, or activity” of the TEA. Otherwise,

states and localities would be required to ensure the ADA compliance of every

heavily-regulated industry, a result that would raise substantial policy,

economic, and federalism concerns. Nothing in the ADA or its regulations

mandates or even implies this extreme result. Thus, we join the Second Circuit

in holding that public entities are not responsible for ensuring the ADA

compliance of even heavily-regulated industries. See Noel, 687 F.3d at 72

(“[C]ontrol over the taxi industry, however pervasive it is at this time, does not

make the private taxi industry ‘a program or activity of a public entity.’”).

Beyond heavy regulation, the named plaintiffs allege only that the TEA

provides sample course materials to driver education schools and sells blank

driver education certificates to them. The provision of such sample course

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materials and blank certificates is simply not enough to turn the schools into

proxies for the TEA.

Admittedly, this case is further complicated by the fact that the benefit

provided by driver education schools—a driver education certificate—is

necessary for obtaining an important governmental benefit—a driver’s license.

Given the broad remedial purposes of the ADA, it would be extremely troubling

if deaf young adults were effectively deprived of driver’s licenses simply

because they could not obtain the private education that the State of Texas has

mandated as a prerequisite for this important government benefit. But this

concern does not transform driver education into a TEA program or service.

Instead, it is partly resolved by the fact that the ADA regulations offer a

potential avenue for relief against the DPS. See, e.g., 28 C.F.R. § 35.130(b)(8)

(providing that a public entity cannot “apply eligibility criteria that screen out

or tend to screen out” individuals with disabilities “from fully and equally

enjoying any service, program, or activity, unless such criteria can be shown to

be necessary for the provision of the service, program, or activity being

offered”). That is, the DPS may well be required to give exemptions to certain

deaf individuals who cannot obtain driver education certificates, given that

using these certificates as an eligibility criteria allegedly “screen[s] out or

tend[s] to screen out” deaf people and may not be “necessary for the provision

of the” driver’s license program. But the named plaintiffs have not sued the

DPS, so we need not decide this issue.

We conclude that the TEA does not provide the program, service, or

activity of driver education. Thus, it is not required to ensure that driver

education complies with the ADA.

CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order

denying the TEA’s motion to dismiss and RENDER judgment that the case is

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dismissed with prejudice for failure to state a claim upon which relief can be

granted.

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WIENER, Circuit Judge, concurring in part and dissenting in part:

I concur in the panel majority’s holding that the named plaintiffs have

standing to bring their ADA claims. I respectfully dissent on the merits,

however, in the firm conviction that TEA’s involvement in driver education in

Texas does constitute a service, program, or activity under Title II of the ADA,

which in turn requires TEA to ensure that its licensee driving schools

accommodate the deaf. Convinced that the named plaintiffs have stated a

claim for which relief may be granted, I would affirm the district court’s

judgment denying TEA’s motion to dismiss and permitting the case to proceed

on the merits.

1. Service, Program, or Activity

This case turns entirely on whether Texas, through TEA, conducts a

service, program, or activity by licensing the driving schools that train all

drivers between 17 and 25 years of age who seek driver’s licenses. As the

majority opinion acknowledges, neither the statutes and regulations nor the

case law provide a precise definition of “services, programs, or activities.” 1 We

differ, however, because the guidance to be derived from these sources

inexorably leads me to the conclusion that the phrase is sufficiently broad and

flexible to apply to TEA’s licensing in this case. The indisputable truism that

virtually every adult, including those between 17 and 25 years old, must have

the opportunity to be licensed to drive a car (or, in Texas, a truck), given

driving’s unique and indispensable importance in their daily lives, confirms to

me beyond cavil that TEA does in fact engage in the public “program” of driver

education. That in turn warrants our mandating that TEA ensure that every

driving school accommodates deaf students.

1 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130.

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2. Contract; Agency; Licensing

The majority opinion rests its holding on its perceived distinction

between contractual and agency relationships, on the one hand, and licensing

relationships on the other. This to me is a classic distinction without a

difference. First and foremost, no such dichotomy appears in the text of Title

II. 2 As for the implementing regulations, if the term “services, programs, or

activities” hinged on the technical legal formalities of agency or contract and

distinguished them based on the formalities of licensing, such a clear rule

would surely be set out in the text, not relegated to subtext. The fact that 28

C.F.R. § 35.130 is couched in the language of standards, not rules, suggests

that DOJ interprets Title II to encompass a greater set of public/private

interactions than the majority opinion recognizes. Indeed, the regulations

explicitly forbid public entities from engaging in discrimination through

“contractual, licensing, or other arrangements.” 3 Not only does 28 C.F.R.

§ 35.130(b)(1) specifically include licensing regimes, but the breadth of the

additional, catch-all phrase, “other arrangements,” cuts against the majority’s

narrow construction that only contractual or agency relationships qualify as

programs and that licensing does not. To me, it’s not a matter of undefined

labels but of the substance of each particular public/private relationship.

I also read DOJ’s Technical Assistance Manual as supportive of a more

expansive view of “services, programs, or activities.” Surely, if the rule to be

gleaned from the four examples in section II-1.3000 were that only contractual

2 See 42 U.S.C. § 12132. This distinction is also entirely absent from the text of the

Rehabilitation Act, which prohibits discrimination in the implementation of “any program or

activity” by entities receiving federal assistance. See 29 U.S.C. § 794(a); see also Frame v.

City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc) (“The ADA and the

Rehabilitation Act generally are interpreted in pari materia.”).

3 28 C.F.R. § 35.130(b)(1) (emphasis supplied).

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or agency relationships between public and private entities could invoke dual

Title II and Title III obligations, but that licensing could not, the manual would

have stated so plainly. Instead, the manual makes only the general point that,

“[i]n many situations, however, public entities have a close relationship to

private entities that are covered by title III, with the result that certain

activities may be at least indirectly affected by both titles.” 4 “Close

relationship” is not synonymous with or restricted to “contractual or agency

relationship,” and I am reluctant to so narrow DOJ’s language. Rather, I see

the four illustrations that follow not as delineating the outer limits of what

constitutes a “close relationship,” but as presenting four non-exclusive, typical

examples of public-private interactions—non-exclusive examples that occur

often in the real world and thus are useful to include as illustrations. The

driver education system at issue here, however, is sui generis—atypical if not

unique—so it is unsurprising that the manual presents no close analogy. What

the manual does do, however, is instruct us to focus on the closeness of the

particular relationship—here, the one between TEA and private driving

schools—not on the legalistic labeling of the relationship as licensing.

Finally, the panel majority’s perceived distinction between contractual

and agency relationships and licensing relationships is nowhere apparent in

the limited case law on this issue. It may well be that a contractual or agency

relationship is a sufficient condition to finding that a public entity’s program

encompasses a private entity’s activities, but it is neither the only one nor a

4 DEP’T OF JUSTICE, THE AMERICANS WITH DISABILITIES ACT TITLE II TECHNICAL

ASSISTANCE MANUAL COVERING STATE AND LOCAL GOVERNMENT PROGRAMS AND SERVICES

§ II-1.3000 (1993) (emphasis supplied), available at http://www.ada.gov/taman2.html.

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necessary one. 5 The critical issue is not whether a contract exists, 6 but (1)

whether a private party services the beneficiaries of the public entity’s

program, and (2) how extensively the public entity is involved in the functions

and operations of the private entity. If the private entity does so serve, and

the public and private entities are closely intertwined, then under those

particular circumstances, the private entity’s activities might be fairly

considered an integral and inseparable part of the public entity’s program.

3. TEA and Driving Schools Are Inextricably Intertwined

The crux of the plaintiffs’ case (and mine!) is that, even though the

driving schools perform the actual day-to-day instruction, instruction is but

one component of the broader program of driver education that is continually

overseen and regulated in discrete detail by TEA. When Chapter 1001 of the

Texas Education Code is considered as a whole, it reveals that TEA

superintends a wide-ranging driver training program in support of Texas’s

5 See Paulone v. City of Frederick, 718 F. Supp. 2d 626, 636 (D. Md. 2010) (allowing a

Title II claim against a city for its failure to ensure that private entities participating in the

city’s alcohol awareness program were ADA compliant, though no contract appears to have

existed between the city and the private entities).

6 See Castle v. Eurofresh, Inc., 731 F.3d 901, 910 (9th Cir. 2013) (“Title II’s obligations

apply to public entities regardless of how those entities chose to provide or operate their

programs and benefits.” (emphasis supplied)). The majority appears to read Independent

Housing Services of San Francisco v. Fillmore Center Associates, 840 F. Supp. 1328, 1344

(N.D. Cal. 1993), as making a “crucial distinction” between a state development agency,

which might be liable under Title II for a private housing development’s discriminatory

practices, and a fire department, which would not be (even if it saved the development from

a fire, thus rendering it “significant assistance”), on the basis of the agency’s contract with

the housing development, and the fire department’s lack of a contract. The court in

Independent Housing noted “that the fire department has not contracted with [the housing

development] for [it] to provide any aid, benefit, or service to beneficiaries of the fire

department’s program,” whereas the state agency “has contracted with [the housing

development] for [it] to provide aid, benefits, or services to beneficiaries of the [a]gency’s

redevelopment program.” Id. In my view, the “crucial distinction” in Independent Housing

is the fact that the public entity used a private entity to implement its urban renewal

program, not that this arrangement was formalized in a contract.

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overarching policy goal of ensuring safe roads for all. Chapter 1001 does not

merely establish TEA’s authority over driver education—and consequently, its

role as gatekeeper to the uniquely pervasive and indispensable state function

of licensing its drivers—but also the agency’s role in ensuring driving safety.

The named plaintiffs do not discuss driving safety schools, but it is notable that

Chapter 1001 gives TEA oversight of both driver education and driving safety,

under the general umbrella of driver training. 7

TEA plays a significant hands-on role in licensing drivers, but its role in

driving safety is anything but remote or marginal. For example, Texans who

receive specified minor traffic tickets may have those tickets dismissed if the

drivers complete a driving safety course certified and licensed by TEA. 8 The

way that the state interfaces driver training and the receipt of state benefits

indicates that its intimate participation at all levels of the private driving

school industry is more than merely regulatory. Through TEA, the state

employs and manages this industry to achieve its own public ends. Again, the

fact that the state’s active involvement in this industry is labeled licensing does

not diminish, much less block, its qualifying as a program of the state for the

purposes of the ADA.

4. TEA’s Role

7 See TEX. EDUC. CODE § 1001.001(9) (defining a “driver training school” as a “driver

education school or driving safety school”).

8 See Information for Driving Safety Class Participants, REGION 13,

http://www4.esc13.net/drivers/faqs-drivers/idsinfo (last visited Mar. 24, 2015). Some

automobile insurance companies also provide discounts for individuals who have completed

such a course, a public-private interaction that TEA facilitates. See id.; see also EDUC.

§ 1001.105 (requiring TEA to “enter into a memorandum of understanding with the Texas

Department of Insurance for the interagency development of a curriculum for driving safety

courses”).

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The powers granted to TEA in Chapter 1001 further support the view

that private driving instruction forms one component of an overall state

program. This is because TEA exerts more rigorous oversight of providers of

driver education than would be expected in most run-of-the-mill licensing

regimes. Every driving school’s curriculum must be approved by TEA, and the

agency “designate[s]” the textbooks that may be used. 9 Furthermore, TEA’s

enforcement powers over driver education schools are broad and varied 10—its

power to order a peer review, for example, suggests a greater degree of

involvement in the driving schools’ operations than is typical of a plain vanilla

licensing arrangement. 11 The requirement that driving school owners and

staff be of “good reputation and character” signals a heightened level of concern

for the reliability of these schools’ services—a concern that is consistent with

TEA as a public provider of a social services program. 12 Similarly, the fact that

each driver education school must post a significant bond, payable to TEA for

its direct use in paying refunds to students, portrays a higher and more

intimate level of agency involvement in these licensees’ activities than would

9 EDUC. § 1001.101(a).

10 See id. § 1001.454(a) (“The commissioner may revoke the license of a driver training

school . . . or may place reasonable conditions on the school . . . if the commissioner has

reasonable cause to believe that the school . . . has violated [Chapter 1001 or a rule adopted

under it].”); id. § 1001.456(a) (“[T]he agency may, without notice: (1) order a peer review; (2)

suspend the enrollment of students in the school or the offering of instruction by the

instructor; or (3) suspend the right to purchase driver education certificates.”); id. § 1001.553

(noting that the commissioner may separately impose administrative penalties of up to

$1,000 per day per offense on schools found in violation of the chapter or the rules adopted

under it); see also id. § 1001.153(a) (allowing the commissioner to set a fee for investigating

complaints against a school, payable by schools that are ultimately found to be at fault).

11 See id. § 1001.456(a). A peer review is an “objective assessment of the content of

the school’s . . . curriculum and its application,” “conducted by a team of knowledgeable

persons selected by the agency,” and paid for by the school under review. Id. § 1001.456(c).

12 Id. § 1001.204(9).

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be expected if TEA were purely a hands-off licensing entity. 13 And TEA has

the right to inspect every school physically at least once a year as a condition

of license renewal 14—more frequently if the school has a history of regulatory

violations. 15

Beyond TEA’s intertwined involvement with driver education schools,

however, is the fact that through TEA the state also employs driver training to

teach civic responsibility, including lessons having nothing to do with the

mechanics of driving. Chapter 1001 requires TEA to ensure that information

about litter prevention 16 and organ donation 17 is included in all driving courses

certified by the agency. That the Texas Legislature has chosen to promote

these important civic and community values through the vehicle of driver

training is another indication that the private driving school industry

participates in a public program of TEA. 18

All of this makes abundantly clear that driver education is not merely a

passively licensed, private, for-profit industry, but constitutes a means by

which TEA substantively and substantially effectuates the policy goals that

13 See id. § 1001.207.

14 See id. § 1001.303.

15 See id. § 1001.454(c).

16 See id. § 1001.107.

17 See id. § 1001.108.

18 In section 1001.111, there is even more evidence that the state sees good driving

habits as a component of good citizenship. For drivers younger than 25, driving safety

courses take on the attributes of civic education. Students are not just instructed on traffic

rules. In addition, they are educated on “the role of peer pressure,” id. § 1001.111(b)(2)(D),

“the effect of poor driver decision-making on [their] family, friends, school, and community,”

id. § 1001.111(b)(2)(E), and the importance of assertiveness, as drivers and as passengers,

see id. § 1001.111(b)(2)(F). They must also sign “a written commitment . . . to family and

friends that the student will not engage in dangerous driving habits.” Id. § 1001.111(b)(3).

Implicit in these requirements is the idea that a responsible driver is a responsible citizen.

To be clear, driver education courses, not driving safety courses, are at issue in this case;

Chapter 1001, however, covers both driver education and driving safety as two parts of an

overall driver training program managed by TEA.

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the state has charged it with implementing and maintaining. The fact that

driver education forms part of the academic curriculum in some public schools

only reinforces the conclusion that this entire infrastructure is truly a

“program” of the state of Texas.

As the panel majority acknowledges, 28 C.F.R. § 35.130(b)(1)(v) is the

regulation that is most relevant to this case. It contemplates precisely the

instant situation: A public entity may well discriminate indirectly by

furnishing significant assistance to a private entity that discriminates directly

by failing to provide the public entity’s program to disabled beneficiaries. The

regulation, in other words, covers a public entity that farms out the practical

implementation of its program to private entities while retaining and

exercising considerable oversight, regulation, and other substantive

involvement. In this case, the driving school students are the direct

beneficiaries of TEA’s program, and TEA furnishes operating licenses and

course completion certificates to private schools that in turn discriminate on

the basis of disability. In my view, the plaintiffs have stated a viable cause of

action: The State of Texas cannot legislatively mandate driver education, then

evade ADA responsibility via a “flea-flicker” lateral from TEA to private

licensees.

5. “Parade of Horribles” Is Inapt

TEA claims that affirming the district court in this case could lead to

requiring the state to police ADA compliance by all heavily regulated, licensed

industries, such as massage parlors and tattoo artists—a typical “parade of

horribles” frequently advanced by desperate public defendants. That may well

be, but the one and only issue before us today is the discrete driver education

scheme mandated by the Texas legislature and created and administered by

TEA. It is sufficiently distinct and distinguishable from all others that

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affirming the district court surely will not open those floodgates. There exist

obviously meaningful differences between this particular public/private

operation and virtually every other private operation that Texas licenses.

TEA’s role is not just about consumer protection, as is the focus of the several

occupational codes cited by the state. I repeat here for emphasis that, in this

day and age, the driving of private and personal vehicles is a uniquely

important, pervasive, and indispensable entitlement, and driving responsibly

is a civic duty that the state seeks to promote with this unique regulatory

scheme that it entrusts to TEA. Nothing about this is changed by the fact that

state-licensed driver education schools happen to be private enterprises.

To illustrate this distinction between driver education and essentially all

other heavily regulated businesses and industries, consider a hypothetical

world in which every driver education school in Texas shuts down, so that no

person under the age of 25 could obtain a driver’s license via private

instruction. Texas would undoubtedly fill the void itself—perhaps by adding

courses at community colleges and expanding the driver education programs

that currently exist in its public schools. But if, by contrast, each and every

massage therapist or tattoo artist school in Texas were to close, the state surely

would not respond by entering the business of training massage therapists or

tattoo artists. Unlike driver education schools, those industries do not serve

as private mechanisms for achieving public ends and public policy.

Viewing the case law from this perspective, the distinction becomes even

more apparent. Liquor stores, 19 buses to gambling and ski resorts, 20 and taxi

cabs 21 are not services of the state. Like Kansas, Colorado, and New York,

19 See Tyler v. City of Manhattan, 849 F. Supp. 1429 (D. Kan. 1994).

20 See Reeves v. Queen City Transp., Inc., 10 F. Supp. 2d 1181 (D. Colo. 1998).

21 See Noel v. N.Y.C. Taxi & Limousine Comm’n, 687 F.3d 63 (2d Cir. 2012).

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Texas might well regulate these industries, but it is not likely to replicate

them. Again, the feature that sets driver education apart from all the rest is

the pervasiveness of driving private vehicles in a state like Texas. States

regulate other industries to prevent unlicensed operators from doing harm. In

contrast, driver education alone is a positive good and an end unto itself. Texas

has chosen to educate drivers via private driving schools, and it regulates this

private industry not simply to protect consumers from unlicensed operators,

but first and foremost to ensure that important training goals for this large

segment of the state’s adult population are met to the state’s satisfaction.

Texas has an inherent interest in driver education that it does not have in any

of the other licensed endeavors, accounting for its extensive involvement

through TEA. 22

Finally, I acknowledge the concern that requiring TEA to take a more

active role in promoting handicap accessibility in driver education would

unduly expand its role. True, it may well impose an unanticipated ADA burden

on the agency. Yet Congress made the conscious calculation to impose this

burden on public entities. In light of this nation’s unseemly history of

systematically excluding persons with disabilities from public life and public

activities, Congress intentionally wrote the ADA “to provide a clear and

comprehensive national mandate for the elimination of discrimination.” 23 It

22 Cases in which Title II has been held to apply to public entities supervising the

activities of private industries consistently involve issues of inherent state interest, such as

health care and education. See, e.g., Paulone v. City of Frederick, 718 F. Supp. 2d 626, 636

(D. Md. 2010) (allowing a deaf plaintiff’s Title II claim to proceed after a city did not provide

interpreters to probationers who were required to attend private alcohol awareness classes,

including a victim impact panel sponsored by Mothers Against Drunk Driving); Disability

Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 317–18 (E.D.N.Y. 2009) (ruling that Title II

covered a state entity that licensed private entities to operate adult homes for individuals

with disabilities).

23 42 U.S.C. § 12101(b)(1) (emphases supplied).

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might not be convenient for TEA to require ADA compliance by its licensed

driver education schools, but the ADA’s sweeping purpose is clear. 24 And, after

all, TEA may rely on the ADA’s safety valve of reasonableness. Although TEA

is obligated to make “reasonable modifications in policies, practices, or

procedures,” if it finds that such modifications are too strenuous, it may

“demonstrate that making the modifications would fundamentally alter the

nature of the service, program, or activity,” and be excused from compliance. 25

A public entity’s obligations under Title II are broad, but they are not

unlimited.

For the foregoing reasons, I respectfully dissent from the panel

majority’s reversal of the district court’s denial of TEA’s motion to dismiss.

24 Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc) (“The ADA

is a ‘broad mandate’ of ‘comprehensive character’ and ‘sweeping purpose’ intended ‘to

eliminate discrimination against disabled individuals, and to integrate them into the

economic and social mainstream of American life.’” (quoting PGA Tour, Inc. v. Martin, 532

U.S. 661, 675 (2001))).

25 28 C.F.R. § 35.130(7).

25