Bacon v. City of Richmond

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHRISTOPHER BACON; D.B., the infant 

who sues by and through his mother

and next friend Vicki Beatty; VICKI

BEATTY; CITIZENS FOR FULL

ACCESS IN RICHMOND,

Plaintiffs-Appellees,

v.

CITY OF RICHMOND, VIRGINIA; L.

DOUGLAS WILDER, JR., in his official

capacity as Mayor of Richmond,

Virginia; CITY COUNCIL OF

RICHMOND, VIRGINIA,

Defendants-Appellants,

SCHOOL BOARD OF THE CITY OF  No. 06-1347

RICHMOND, VIRGINIA,

Defendant-Amicus Curiae.

VIRGINIA MUNICIPAL LEAGUE; LOCAL

GOVERNMENT ATTORNEYS OF

VIRGINIA, INCORPORATED,

Amici Supporting Appellants,

VIRGINIA OFFICE FOR PROTECTION AND

ADVOCACY, Commonwealth of

Virginia; PARALYZED VETERANS OF

AMERICA,

Amici Supporting Appellees.



2 BACON v. CITY OF RICHMOND

CHRISTOPHER BACON; D.B., the infant 

who sues by and through his mother

and next friend Vicki Beatty; VICKI

BEATTY; CITIZENS FOR FULL

ACCESS IN RICHMOND,

Plaintiffs-Appellants,

v.

CITY OF RICHMOND, VIRGINIA; L.

DOUGLAS WILDER, JR., in his official

capacity as Mayor of Richmond,

Virginia; CITY COUNCIL OF

RICHMOND, VIRGINIA,

Defendants-Appellees,

SCHOOL BOARD OF THE CITY OF  No. 06-1594

RICHMOND, VIRGINIA,

Defendant-Amicus Curiae.

VIRGINIA OFFICE FOR PROTECTION AND

ADVOCACY, Commonwealth of

Virginia; PARALYZED VETERANS OF

AMERICA,

Amici Supporting Appellants,

VIRGINIA MUNICIPAL LEAGUE; LOCAL

GOVERNMENT ATTORNEYS OF

VIRGINIA, INCORPORATED,

Amici Supporting Appellees.



Appeals from the United States District Court

for the Eastern District of Virginia, at Richmond.

Henry E. Hudson, District Judge.

(3:05-cv-00425-HEH)

Argued: November 29, 2006

Decided: January 23, 2007

BACON v. CITY OF RICHMOND 3

Before WILKINSON and DUNCAN, Circuit Judges, and

Joseph R. GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

Reversed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Duncan and Judge Goodwin joined.

COUNSEL

ARGUED: David J. Freedman, Assistant City Attorney, CITY

ATTORNEY’S OFFICE FOR THE CITY OF RICHMOND, Rich-

mond, Virginia, for Appellants/Cross-Appellees. Joseph J. Mueller,

WILMER, CUTLER, PICKERING, HALE & DORR, L.L.P., Boston,

Massachusetts, for Appellees/Cross-Appellants. ON BRIEF: Beverly

Agee Burton, Senior Assistant City Attorney, CITY ATTORNEY’S

OFFICE FOR THE CITY OF RICHMOND, Richmond, Virginia, for

Appellants/Cross-Appellees. David D. Hopper, COOK, HEYWARD,

LEE, HOPPER & FEEHAN, P.C., Richmond, Virginia; Cynthia D.

Vreeland, WILMER, CUTLER, PICKERING, HALE & DORR,

L.L.P., Boston, Massachusetts; Christopher Davies, WILMER, CUT-

LER, PICKERING, HALE & DORR, L.L.P., Washington, D.C., for

Appellees/Cross-Appellants. William D. Bayliss, Edward J. Dillon,

WILLIAMS MULLEN, P.C., Richmond, Virginia, for Amicus Curiae

School Board of the City of Richmond, Virginia. William S. Mai-

lander, Michael P. Horan, PARALYZED VETERANS OF AMER-

ICA, Washington, D.C., for Amicus Curiae Paralyzed Veterans of

America. Julie C. Kegley, Steven M. Traubert, COMMONWEALTH

OF VIRGINIA, Virginia Office for Protection and Advocacy, Rich-

mond, Virginia, for Amicus Curiae The Commonwealth of Virginia,

Virginia Office for Protection and Advocacy. L. Lee Byrd, Sharon E.

Pandak, Jeffrey H. Geiger, SANDS, ANDERSON, MARKS & MIL-

LER, P.C., for Amici Curiae Virginia Municipal League and Local

Government Attorneys of Virginia, Inc.

4 BACON v. CITY OF RICHMOND

OPINION

WILKINSON, Circuit Judge:

In this case we are asked to decide whether a city may be required

to fund a federal court order mandating the system-wide retrofitting

of city schools, under Title II of the Americans with Disabilities Act,

42 U.S.C. §§ 12131-34 (2000), without any determination that the

city discriminated against or otherwise excluded plaintiffs from its

services and activities. Recognizing the fundamental precept that rem-

edies may be imposed only upon a party judged liable for some harm,

we reverse the judgment of the district court. To impose a funding

obligation on the city in the absence of any underlying finding of lia-

bility would disrespect the long-standing structure of local govern-

ment and impair the Commonwealth’s ability to structure its state

institutions and run its schools.

I.

This case arises out of a settlement agreement in which the Rich-

mond City School Board agreed to retrofit fifty-six of its sixty school

buildings and to make approximately $23 million in capital improve-

ments over five years. Plaintiffs, primarily disabled school children

and their families, seek equal access to Richmond school buildings

and to the services, programs, and activities conducted therein. They

sued the Richmond City School Board as well as the City of Rich-

mond, the Richmond City Council, and the Mayor of Richmond under

Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-

34 (2000), Section 504 of the Rehabilitation Act, 29 U.S.C. § 794

(2000), and the Virginians with Disabilities Act, Va. Code Ann.

§ 51.5-1 et seq. (2005). Plaintiffs alleged that fifty-six of Richmond’s

sixty public schools violated the ADA’s structural accessibility guide-

lines and requested system-wide injunctive relief.

The schools at issue here were constructed prior to 1992, the year

that the ADA became effective. In 1992, the School Board commis-

sioned an architectural study to evaluate structural compliance with

the ADA. This study revealed accessibility barriers and recommended

a series of retrofitting projects designed to bring pre-1992 buildings

into compliance with Title II. The school system made various

BACON v. CITY OF RICHMOND 5

improvements to Richmond Public School buildings but did not fully

implement the 1992 study.

In 2004, the School Board commissioned Trice Architects to con-

duct a second ADA compliance study. In its January 2005 report,

Trice Architects identified a variety of barriers to access, including a

lack of wheelchair ramps, elevators, handrails, and wheelchair-

accessible bathrooms. After receiving the study, the School Board

formed an ADA Subcommittee that developed a three-year remedia-

tion plan and called for ADA-related capital improvements beginning

in the 2005-06 school year.

On May 31, 2005, the City Council adopted its 2006 capital

improvements budget. That budget allocated $2 million in capital

improvement funds to the Richmond Public Schools for fiscal year

2006 and $21.6 million over the next five years. Plaintiffs filed suit

on June 14, 2005. They argued that the budget provided almost no

funding to correct the school’s disability accommodation deficiencies.

For its part, the City contended that the School Board failed to bring

the ADA noncompliance to its attention in a timely fashion and also

that the School Board had surplus capital funds sufficient to fund the

first year of ADA remediation.

After the district court denied defendants’ motions to dismiss plain-

tiffs’ ADA and Rehabilitation Act claims, Bacon v. City of Richmond,

386 F. Supp. 2d 700, 706-08 (E.D. Va. 2005), the School Board set-

tled with plaintiffs. The School Board first conceded that the Rich-

mond Public Schools did not comply with federal and state disability

laws. It then agreed with plaintiffs that the appropriate remedy was

to "bring the Richmond Public Schools into compliance with the Dis-

ability Laws" by executing the remediation plan proposed by the

ADA Subcommittee within five years. The School Board also agreed

to pay $45,000 in attorneys’ fees and costs and to "use its best efforts

to obtain the funding necessary to fully implement [the Settlement]

Agreement." The Settlement Agreement, however, provided that the

School Board’s obligations were "contingent on" the School Board

"receiving funding from the City of Richmond."

The City and plaintiffs then filed cross-motions for summary judg-

ment. The City contended that, because Virginia law vests the School

6 BACON v. CITY OF RICHMOND

Board with exclusive control over City schools, it was not responsible

for the ADA violations. Plaintiffs maintained that since the City pro-

vided capital funding to the Richmond schools it was critical to the

Settlement Agreement and thus a necessary party. The district court

agreed with plaintiffs. It granted summary judgment in their favor and

ordered the City to "ensure that the Richmond City Public Schools

become ADA-compliant" within five years. Bacon v. City of Rich-

mond, 419 F. Supp. 2d 849, 855 (E.D. Va. 2006) [hereinafter Bacon

II]. In this connection, the district court imposed upon the City a fund-

ing obligation, directing the City to make "a reasonable, good faith

appropriation to the School Board in the normal course of the budget

process, sufficient to enable ADA compliance within the specified

time frame." Id. The district court denied plaintiffs’ subsequent peti-

tion for attorneys’ fees. Both parties now appeal.

We review the district court’s grant of summary judgment de novo

resolving all doubts and inferences in favor of the non-moving party.

Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 354 (4th Cir.

2003). When faced with cross-motions for summary judgment, we

consider "each motion separately on its own merits to determine

whether either of the parties deserves judgment as a matter of law."

Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal

quotations omitted). Although decisions relating to injunctive relief

are normally reviewed for abuse of discretion, the court’s review is

de novo where the disputed issue is a question of law. Va. Carolina

Tools, Inc. v. Int’l Tool Supply, Inc., 984 F.2d 113, 116 (4th Cir.

1993) (quoting Thornburgh v. Am. Coll. of Obstetricians & Gynecolo-

gists, 476 U.S. 747, 757 (1986)).

II.

Our legal system is built on the foundational principle that reme-

dies are a means of redressing wrongs. As the Supreme Court has

long made clear, a remedy must be tailored to a violation. See, e.g.,

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971).

"As with any equity case, the nature of the violation determines the

scope of the remedy." Id. Remedies, in other words, do not exist in

the abstract; rather, they flow from and are the consequence of some

wrong. At its most basic, this principle limits the reach of judicial

decrees to parties found liable for a legal violation. See id.

BACON v. CITY OF RICHMOND 7

The Supreme Court’s decision in Milliken v. Bradley is instructive.

In that case, the Supreme Court held it beyond the limits of judicial

power to interfere with the operation of entities that have not violated

plaintiff’s rights. Milliken v. Bradley, 418 U.S. 717, 744-45 (1974)

[hereinafter Milliken I]. Accordingly, the Court vacated the interdis-

trict desegregation order at issue there precisely because it contem-

plated "restructuring the operation of local governmental entities that

were not implicated in any constitutional violation." Hills v.

Gautreaux, 425 U.S. 284, 296 (1976) (interpreting Milliken I, 418

U.S. 717 (1974)). In sum, a legal violation is a "necessary predicate

for the entry of a remedial order." Id. at 297.

Recognizing the ancient maxim that an entity may not be made the

subject of a remedial decree absent some finding of liability, courts

— since the days of Marbury v. Madison — have viewed remedial

questions as the second prong of a two-step inquiry. A court first

determines whether this defendant has wronged this plaintiff. Only if

this antecedent inquiry is answered in the affirmative does the court

speak to the remedial issue, asking "2d. If [plaintiff] has a right, and

that right has been violated, do the laws of [t]his country afford him

a remedy?" Marbury v. Madison, 5 U.S. (1 Cranch) 137, 154 (1803).

Preserving the link between remedies and violations is not only a mat-

ter of avoiding unfair impositions on a party. It also expresses an

important separation of powers principle, ensuring that court edicts

are grounded in the requirements of law and not in notions of judicial

policy. Court-ordered decrees therefore "exceed appropriate limits"

when they are "imposed upon governmental units that were neither

involved in nor affected by" the violation. Milliken v. Bradley, 433

U.S. 267, 282 (1977) [hereinafter Milliken II].

We thus return to these first principles. For plaintiffs to prevail on

their Title II claim, they must prove that some action attributable to

the City caused them to "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," here the

Richmond Public Schools. See 42 U.S.C. § 12132.

III.

Title II and its sister provisions implement Congress’ "clear and

comprehensive national mandate for the elimination of discrimination

8 BACON v. CITY OF RICHMOND

against individuals with disabilities." See 42 U.S.C. § 12101(b)(1). A

statutory violation is not limited to a finding of discriminatory intent.

Rather, Title II prohibits discriminating against disabled persons in

two ways. The provision first bars the exclusion of otherwise quali-

fied persons with a disability from participating in or "receiving the

benefits of the services, programs or activities of a public entity." Id.

§ 12132. It also bars a public entity from discriminating against an

individual on the basis of disability. Id. To repeat, to prevail under

Title II of the ADA plaintiffs must show either "that [they] w[ere]

excluded from participation in, or denied the benefits of, a program

or service offered by a public entity, or subjected to discrimination by

that entity." Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 499 (4th Cir. 2005) (emphasis added).

The district court in this case did not find that the City excluded

plaintiffs from receiving the benefits of its services or programs or

that the City had in any way discriminated against plaintiffs. To the

contrary, the district court began by noting that it had "no intention

of conducting a fault-finding inquiry." Bacon II, 419 F. Supp. 2d at

854. The court then found that Virginia’s General Assembly had

vested the School Board — "an independent municipal agency" —

with "direct statutory accountability for compliance" with federal and

state disability laws, id. at 855; that the School Board "directly con-

trols" capital improvement projects, like the ADA remediation at

issue here, id. at 854; and that the School Board alone decides how

to allocate its budget, id. These findings led the court, in denying

plaintiffs’ motion for attorneys’ fees, to conclude: "From a purely

statutory perspective, the responsibility for compliance [with federal

disability laws] resided with the City School Board, which has the

duty to physically maintain the City schools. It was the School Board

that breached its specific duty of compliance in this case." J.A. 4109.

Accordingly, the district court properly found "no fault with the City."

J.A. 4110.

Despite all this, the district court granted summary judgment to

plaintiffs. The court ordered the City to "ensure that the Richmond

City Public Schools become ADA-compliant within [five years]," and

to provide "a reasonable, good faith appropriation to the School Board

in the normal course of the budget process, sufficient to enable ADA

compliance within the specified time frame." Bacon II, 419 F. Supp.

BACON v. CITY OF RICHMOND 9

2d at 855. The district court reasoned that since the City provided

funding to the Richmond schools it was a necessary party; thus evi-

dence neither of fault nor of discrimination was "necessary to obtain

equitable remedies under the ADA." Id. at 854.

We disagree. The district court’s remedial order undermines the

basic precept of law discussed above: that remedies may be imposed

only on responsible parties. Injunctive relief may not issue where, as

here, the City played no part in depriving any plaintiff of the rights

guaranteed by the ADA. See Rizzo v. Goode, 423 U.S. 362, 377

(1976). To impose responsibility in the absence of fault and causation

would stretch the law of remedies beyond limit. As for Title II, it can-

not be read to impose strict liability on public entities that neither

caused plaintiffs to be excluded nor discriminated against them. A

remedy unmoored to any finding of fault is not a remedy at all and

we must therefore reverse the judgment.

IV.

A.

Plaintiffs contend nonetheless that fault is irrelevant because the

City provides capital funding to the Richmond Public Schools. Plain-

tiffs thus hitch their wagon to the district court’s finding that the City

by virtue of its "power of the purse" bears some responsibility for cor-

recting the ADA violations in the Richmond Public Schools. See

Bacon II, 419 F. Supp. 2d at 854. But using the City’s status as a

funder to impose responsibility — in the express absence of fault and

causation — presents several difficulties.

1.

First, the City exercises no operational control over City school

buildings or school services and activities. Virginia law vests the

School Board with exclusive authority over Richmond’s public

schools. Article VIII, section 7, of the Virginia Constitution provides,

"The supervision of the schools in each school division shall be

vested in a school board." Va. Const. art. VIII, § 7; see also Under-

wood v. Henry County Sch. Bd., 427 S.E.2d 330, 333 (Va. 1993);

10 BACON v. CITY OF RICHMOND

Bristol Va. Sch. Bd. v. Quarles, 366 S.E.2d 82, 88 (Va. 1988). The

Virginia Code implements this provision by establishing the Com-

monwealth’s school boards as independent corporate bodies, Va.

Code Ann. § 22.1-71, "given the responsibility by law of establishing,

maintaining and operating the school system," Bd. of Supervisors v.

County Sch. Bd. of Chesterfield County, 28 S.E.2d 698, 702 (Va.

1944); see also Va. Code Ann. § 22.1-79(2)-(3).

The School Board’s operational authority over school property and

programs is set forth in some detail. School boards must ensure that

schools are "conducted according to law," Va. Code Ann. § 22.1-

79(2), "[c]are for, manage and control" school property, id. § 22.1-

79(3), and "provide for the erecting, furnishing, equipping, and nonin-

structional operating of necessary school buildings and appurte-

nances," id. The School Board’s independence is further illustrated by

its statutory authority to sue and be sued, id. § 22.1-71, hire employ-

ees, id. §§ 22.1-293, 22.1-295, insure school property and personnel,

id. § 22.1-84, and pay claims, id. § 22.1-122. In short, "[t]he power

to operate, maintain and supervise public schools in Virginia is, and

has always been, within the exclusive jurisdiction of the local school

boards." Bradley v. Sch. Bd. of Richmond, 462 F.2d 1058, 1067 (4th

Cir. 1972).1

In stark contrast, the City of Richmond has no power to make

physical changes to school buildings or control the day-to-day opera-

tion of local school buildings and their services and programs. With

1

Virginia Code section 22.1-94 gives local governing bodies the

authority to appropriate funds into "major classification" categories. And

while the school board must expend classified funds "in accordance with

such classifications," id. § 22.1-89, the City is without power to earmark

funds for a particular project like ADA remediation. Sch. Bd. of Chester-

field County, 28 S.E.2d at 705; see also Va. Code Ann. §§ 22.1-94, 22.1-

115.

Plaintiffs make much of the distinction between capital and other

funds: they argue that the City is a necessary party because it is the "only

viable source of capital improvements funding." But plaintiffs have iden-

tified no legal reason why the School Board cannot use other nonclassi-

fied funds received from the City or indeed funds received from the state

or federal government for ADA remediation.

BACON v. CITY OF RICHMOND 11

the exception of raising taxes and providing funding, the City is not

"charged by law with the establishment, maintenance and operation

of the public school system." Sch. Bd. of Chesterfield County, 28

S.E.2d at 702. It cannot dictate school services or programs. Indeed,

the City cannot specify how the funds it appropriates to City schools

may be spent: "[T]he exclusive right to determine how [appropriated

funds] shall be spent is in the discretion of the school board so long

as they stay within the limits set up in the budget." Id. at 705. To

impose funding liability thus places the City between a rock and a

hard place: The City must "ensure that the City schools become

ADA-compliant within [five years]," but is powerless to control the

expenditure of school funds.

The district court in this case noted, but failed to heed, the Com-

monwealth’s decision to place primary responsibility for Virginia

schools in the hands of local school boards. Instead, in an order that

runs counter to the basic structure of Virginia law, the court made the

City liable for funding. But this assumes that the City has the discre-

tionary authority that could lead to a statutory infraction. For it is only

the exercise of discretion in school operations that can result in a Title

II violation. In short, the remedial order issued here ascribes to the

City a discretionary function which local law precludes.

Such an ascription has profound implications. A State has near ple-

nary authority to allocate governmental responsibilities among its

political subdivisions. This power to structure its internal government

is among those reserved to the Commonwealth by the Tenth Amend-

ment. See, e.g., Bradley, 462 F.2d at 1068. Needless to say, the fed-

eral court must in turn respect a State’s division of responsibility.

Federal courts must tread with especial caution where, as here, a

State’s paramount interest in educating its children is at stake. Local

control over the operation of public schools is one of our nation’s

most deeply rooted traditions — and for good reason. "[L]ocal auton-

omy has long been thought essential both to the maintenance of com-

munity concern and support for public schools and to [the] quality of

the educational process." Milliken I, 418 U.S. at 741-42. School

authorities are granted substantial authority to formulate educational

policy because they must balance so many competing interests. They

are more in tune with educational exigencies — for example, the

12 BACON v. CITY OF RICHMOND

competing needs for more labs, additional classrooms, new buildings,

and repairs — than are federal courts. Thus, even where appropriate,

"[r]emedial judicial authority does not put judges automatically in the

shoes of school authorities whose powers are plenary." Swann, 402

U.S. at 16. Before a federal court may recalibrate the State’s basic

system of educational governance and conflate the functions of two

very different entities, it must "take into account the interests of state

and local authorities in managing their own affairs." Milliken II, 433

U.S. at 281.

To be sure, the States’ near plenary power over political subdivi-

sions may not be used as a subterfuge to avoid statutory or constitu-

tional obligations. Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960).

If state or local governments were to conspire to immunize them-

selves from ADA or other claims by dividing operational control and

funding authority this would, of course, be evidence of discrimina-

tion. See, e.g., United States v. Bd. of Educ. of Chicago, 11 F.3d 668,

673-74 (7th Cir. 1993); James v. Duckworth, 170 F. Supp. 342, 346-

47 (E.D. Va. 1959), aff’d, 267 F.2d 224, 228 (4th Cir. 1959). If the

City of Richmond "is at fault, it can be punished or enjoined; but a

faultless third party cannot be." Bd. of Educ. of Chicago, 11 F.3d at

674.

In the case at hand, however, the separate corporate bodies estab-

lished by Virginia law are no subterfuge; they were not intended to

circumvent any federally created right. To the contrary, Virginia’s

longstanding division of authority serves legitimate state purposes.

Virginia could certainly have concluded that to entrust the School

Board and the City with the same responsibilities vis-a-vis education

would be like one too many cooks stirring the broth. For the City to

"exercise a large amount of control over the operation of the school

system," would result in "a serious division of authority, which it

would not seem the legislature would have intended." Sch. Bd. of

Chesterfield County, 28 S.E.2d at 702. Such a system — with its

overlapping jurisdiction, and finger pointing, and turf fighting —

could lessen the accountability of public officials and decrease the

transparency of school decisions. Virginia sought long before enact-

ment of the ADA to avoid this morass through the creation of separate

entities, and plaintiffs’ invitation to blur the lines of educational

authority must be declined.

BACON v. CITY OF RICHMOND 13

2.

Plaintiffs’ claim that the City alone bears financial responsibility

for ADA noncompliance by virtue of its status as a funder of the local

school system overlooks the fact that the Richmond School Board

receives funding from other sources. Under Virginia Code § 22.1-88,

the School Board draws on three main sources for the support and

maintenance of its schools: state funds, federal funds, and local funds.

To single out the City for responsibility when it is but one source of

funds not only raises serious equitable concerns, but also demon-

strates the breadth of the district court’s theory of funding liability.

Title II defines "public entity" to include "any State or local govern-

ment." 42 U.S.C. § 12131(1)(A). Insofar as the district court relied

upon the City’s "power of the purse" to impose a remedy here, there

is nothing to distinguish the City from state funding sources. But a

State is not a necessary party based solely on its decision to fund

schools. See, e.g., King v. Pine Plains Cent. Sch. Dist., 918 F. Supp.

772, 782 (S.D.N.Y. 1996) (New York State Department of Social Ser-

vices was not a necessary party because, based on defendant’s reason-

ing, "any number of state and federal agencies that are involved in

funding the education of disabled children would be necessary par-

ties").

To make funding entities responsible for the statutory violations of

funding recipients would stretch the contours of Title II. Title II does

not contemplate funding liability for an independent public entity that

neither controls the challenged services nor discriminated against

plaintiffs because of disability. It does not impose guarantor liability

or make funding entities ADA insurers for funding recipients. To the

contrary, the plain text of Title II limits responsibility to public enti-

ties that discriminate against or exclude persons with disabilities from

the services, programs, or activities administered by the entity. Sec-

tion 12132 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 (emphasis added). To hold that a city or State by vir-

tue of its funding authority is liable for injury caused solely by a sepa-

rate and independent corporate body is a novel and unprecedented

theory. It would also expose many different entities to extensive lia-

14 BACON v. CITY OF RICHMOND

bility. For it will be the rare case where plaintiff will be unable to

identify a source of outside funding.

Plaintiffs’ theory of pass-through liability again upsets the balance

of Virginia law. A grantor is not required to anticipate — on pain of

liability — every sort of debt that its grantee might incur. To impose

such a requirement here would be counterproductive from the stand-

point of local schools. First, it might discourage funding. Funding

entities compelled to anticipate every conceivable liability might be

more cautious and circumspect about funding decisions, particularly

where, as here, a city had no control over how its funds were spent.

Second, an inordinate amount of red tape would be generated while

experts and actuaries calculated the risks involved in the operation of

local schools. This new regime, supplanting the established relation-

ship of remedies to violations, would only burden funding for public

education and undermine the public interest.

3.

Finally, plaintiffs’ theory of funding liability would work a change

in litigation incentives. No longer would settlement agreements be

conducted at arms-length. Rather, armed with the knowledge that a

third-party funder would be on the hook, administrators would have

diminished reason to dispute liability. Plaintiffs could present wish

lists for the system-wide remediation of schools, prisons, or other

state functions and facilities. Administrators could then concede lia-

bility far in excess of statutory or constitutional requirements on the

assumption that someone else would always pay. To so restructure lit-

igation incentives might result in sweetheart consent decrees and set-

tlement agreements that fail to reflect the arms-length bargaining

upon which our legal system depends. But settlement agreements are

"not to be used as a device by which A and B, the parties to the

decree, can (just because a judge is willing to give the parties’ deal

a judicial imprimatur) take away the legal rights of C, a nonparty."

Bd. of Educ. of Chicago, 11 F.3d at 673.

B.

Plaintiffs also argue that the City can be held liable because it owns

the disputed school buildings and because it uses those buildings for

BACON v. CITY OF RICHMOND 15

certain recreational programs and civic events. Title II, however,

speaks not of ownership but of accessibility to "services, programs or

activities." 42 U.S.C. § 12132. Where, as here, a city does not exer-

cise any control over challenged services and activities, it is difficult

to see how Title II applies. Had Congress wished to impose liability

on public entities who own non-accessible buildings it could easily

have said so. Title III, for example, imposes liability on both owners

and operators of non-accessible public accommodations. 42 U.S.C.

§ 12182(a) ("No individual shall be discriminated against on the basis

of disability . . . by any person who owns, leases (or leases to), or

operates a place of public accommodation.") (emphasis added). We

must, of course, interpret Title II in accordance with what Congress

has said.

Furthermore, under Virginia law, the City of Richmond is vested

with bare legal title and thus the owner of school buildings in name

only. Equitable title to school property rests in the hands of the

School Board. It is the School Board that is "vested with the exclusive

control of all school property . . . both real and personal." Sch. Bd.

of Chesterfield County, 28 S.E.2d at 704; see also Va. Code Ann.

§ 22.1-125. This is true even where legal "title to such property is

vested . . . in . . . a city." Va. Code Ann. § 22.1-125.B. Likewise, the

School Board is the legal entity charged with the care, management,

and control of school property. Id. § 22.1-79(3).

Nor are the City’s limited functions at the Richmond Public

Schools — such as the recreational programs offered by the Depart-

ment of Parks, Recreation and Community Facilities — at issue in

this case. Although plaintiffs challenged accessibility to City events

at the summary judgment stage, they failed to provide any evidence

of several elements of a Title II prima facie case: that (1) they were

qualified to participate in the challenged events and programs, and (2)

were "excluded from participation in or denied the benefits of such

service, program, or activity." Constantine, 411 F.3d at 498.

Even if plaintiffs had established a prima facie case with respect to

City events conducted at the Richmond Public Schools, the district

court’s chosen remedy ignores settled law. The system-wide retrofit-

ment envisioned by the district court here does not comport with the

Supreme Court’s repeated mandates that injunctions must "be used

16 BACON v. CITY OF RICHMOND

sparingly, and only in a clear and plain case," Irwin v. Dixon, 50 U.S.

(9 Howard) 9, 33 (1850), and that "the nature of the violation deter-

mines the scope of the remedy," Swann, 402 U.S. at 16. The ADA’s

implementing regulations state: "A public entity is not required to

make structural changes in existing facilities where other methods are

effective in achieving compliance." 28 C.F.R. § 35.150(b)(1) (2006).

It is easy to envision a more narrowly tailored, and, thus more appro-

priate, means of curing inaccessibility to City events than the system-

wide retrofitment of fifty-six school buildings. The City might, for

example, be compelled to host such activities at locations that do not

feature architectural barriers. See id.

Finally, plaintiffs claim that equitable remedies do not require any

finding of fault under the ADA. We note at the outset that this court

has never endorsed different liability standards based on the type of

ADA remedy sought — and no such dichotomy can be found in Title

II’s text. In any case, while the Ninth Circuit has suggested that "equi-

table remedies for violations of the ADA are available regardless of

a defendant’s intent," Midgett v. Tri-County Metro. Transp. Dist., 254

F.3d 846, 851 (9th Cir. 2001), that case did not go so far as to hold

that a defendant who neither controls the challenged functions nor

engages in any sort of discrimination may nevertheless be compelled

to comply with a federal court order.

V.

None of this means that plaintiffs are without recourse. The School

Board is, as noted, an independent corporate body with the authority

to sue and be sued, to settle claims, and to enter into contractual

arrangements. Va. Code Ann. §§ 22.1-71, 22.1-122. As with any con-

tract, settlement agreements are generally enforceable against any sig-

natory, including school boards. Thus the settlement terms ultimately

reached by plaintiffs and the School Board as a result of arms-length

negotiation are obligations on the part of the School Board.2 Like-

2

We say ultimately because the January 2006 Settlement Agreement

was a contingent one, providing that the School Board’s obligations

depended on "the School Board receiving funding from the City of Rich-

mond." We express no view as to whether this contingency has or has

not been fulfilled.

BACON v. CITY OF RICHMOND 17

wise, litigated judgments where liability and remedy are tailored to

statutory requirements become legal obligations. Once School Board

obligations are fixed in such fashion, the School Board can present —

as with any other legal obligation or educational need — whatever

ADA duties it has not only to the City but also to other funding enti-

ties.

There are many reasons to suppose that the City will not leave the

School Board to struggle with its legal obligations or educational

needs alone. Providing its constituents with a quality public education

system is perhaps the City’s most critical task. Thus City residents —

the ultimate arbiters of electoral outcomes and consumers of City

schools — have much to lose if funding is not forthcoming for educa-

tional needs. Indeed, under Virginia Code section 22.1-95, the City is

"authorized, directed and required to raise money" to meet the Stan-

dards of Quality promulgated by the State Board of Education. See

Va. Code Ann. §§ 22.1-95, 22.1-253.13:1, et seq.

For the federal courts to impose funding obligations upon the City

in the absence of underlying legal violations simply short- circuits the

legal and political process that states have put into place for the sup-

port of public schools. Law gives us no license to supplant these

structures of self-governance with decrees writ large. See Missouri v.

Jenkins, 515 U.S. 70, 102 (1995). For reasons stated heretofore, we

reverse and vacate the judgment of the district court. On remand, the

district court should enter summary judgment in favor of the City.3

3

With respect to plaintiffs’ other claims, the district court also made no

findings that the City was liable for any statutory violation. Further,

plaintiffs do not argue that the City receives education funds from either

the federal or state government. Nor do plaintiffs dispute that both fed-

eral and state education funds flow directly to the School Board — the

entity responsible, under Virginia law, for ensuring that City schools

comply with state and federal disability law. See, e.g., Bentley v. Cleve-

land County Bd. of County Comm’rs, 41 F.3d 600, 603 (10th Cir. 1994)

(noting that the Rehabilitation Act requires "a sufficient nexus between

the federal funds and the discriminatory practice"); Schroeder v. City of

Chicago, 927 F.2d 957, 962 (7th Cir. 1991) (noting that amendments to

the Rehabilitation Act were not "intended to sweep in the whole state or

local government, so that if two little crannies . . . of one city agency . . .

18 BACON v. CITY OF RICHMOND

REVERSED

discriminate, the entire city government is in jeopardy of losing its fed-

eral financial assistance").

Because we reverse the district court’s order granting summary judg-

ment to plaintiffs and find that summary judgment should be entered in

favor of the City we uphold the district court’s denial of plaintiffs’ peti-

tion for attorneys’ fees. See Hensley v. Eckerhart, 461 U.S. 424, 429

(1983) (party must prevail to be awarded attorneys’ fees).