Opinion

Untitled Texas Attorney General Opinion

Court
Texas Attorney General Reports
Filed
Jul 2, 2007
Status
Published
On the bench
Greg Abbott
Cited by
0 cases
Authority
More cited than 3.5%

stating that "an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers [and] to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made"

How later courts described this case

  • stating that "an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers [and] to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made"
  • holding that title II abrogates state sovereign immunity "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment"

Written by the judges who cited it.

The opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 8, 2007

The Honorable Rodney Ellis Opinion No. GA-0579

Chair, Committee on Government Organization

Texas State Senate Re: Whether the Texas Lottery Commission

Post Office Box 12068 violates the Americans with Disabilities Act if

Austin, Texas 78711-2068 it fails to provide "meaningful access" to state

services (RQ-0586-GA)

Dear Senator Ellis:

You ask whether the Texas Lottery Commission (the "Commission") violates the Federal

Americans with Disabilities Act (the "ADA") if it fails to provide "meaningful access" to state

services.!

I. Statutory and Regulatory Background

The ADA is a civil rights law prohibiting discrimination based on disability. See generally

42 U.S.C. §§ 12101-12213 (2000 & Supp. IV 2004). Title I of the ADA prohibits employment

discrimination on the basis of a person's disability. See ide §§ 12111-12117; see also 29 C.F.R.pt.

1630 (2006) (rules promulgated by the Federal Equal Employment Opportunity Commission to

enforce and implement title). Title II prohibits discrimination against disabled persons by public

entities. See 42 U.S.C. §§ 12131-12165 (2000 & Supp. IV 2004); see also 28 C.F.R. pt. 35 (2006).

Title III prohibits discrimination against disabled persons in places of public accommodation. See

42 U.S.C. §§ 12181-12189 (2000); see also 28 C.F.R. pt. 36 (2006).

Your question, whether the Commission violates the ADA by failing to provide "meaningful

access" to state services, primarily concerns title II, and thus we confine our analysis accordingly.

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 ofa public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132

(2000). The United States Department of Justice (the "DOJ") has promulgated rules to enforce and

implement title II. See 28 C.F.R. pt. 35 (2006) (implementing title II, subchapter A). Additionally,

lLetter from Honorable Rodney Ellis, Chair, Senate Committee on Government Organization, Texas State

Senate, to Honorable Greg Abbott, Attorney General ofTexas (Apr. 25, 2007) (on file with the Opinion Committee, also

available at http://www.oag.state.tx.us).

The Honorable Rodney Ellis - Page 2 (GA-0579)

the DOJ has published an appendix providing a section-by-section analysis of those rules with

commentary to aid in their implementation. See ide app. A (Section-By-Section Analysis); ide pt. 36,

app. B (Section-By-Section Analysis and Response to Comments). See also Tex. Att'y Gen. Op.No.

JC-0050 (1999) at 1-2 (providing additional background to the ADA).

II. Analysis

Title II applies to the actions ofa "public entity," defined to include "any department, agency,

special purpose district, or other instrumentality of a State." 42 U.S.C. § 12131(1)(b) (2000).

According to section 12131(1)(b), a state agency, such as the Commission, is a public entity subject

to the rules and regulations specified by title II ofthe ADA to the extent that title II validly abrogates

a state's sovereign immunity. 2 See id.; TEX. GOV'TCODEANN. §§ 466.001-.303 (Vemon2004) (the

.State Lottery Act, which establishes the Commission and its administrative authority). Section

12132 of title II 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 ofa public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132

(2000). The DOJ regulation implementing section 12132 requires a "public entity [to] make

reasonable modifications in policies, practices, or procedures when . . . necessary to avoid

discrimination on the basis of disability, unless the public entity can demonstrate that making the

modifications would fundamentally alter the nature ofthe service, program, or activity." 28 C.F.R.

§ 35.130(b)(7) (2006).

Because title II requires that a public entity comply with regulations very similar to section

504 of the Rehabilitation Act of 1973, courts look to the Rehabilitation Act to interpret the ADA.

See Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794 (2000 & Supp. IV 2004) [hereinafter

Rehabilitation Act]; see also Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1060 n.4

(5th Cir. 1997) (stating that the Rehabilitation Act is the predecessor to the ADA and may be

used to interpret the ADA). The Rehabilitation Act requires a public entity to make reasonable

accommodations when a person with a disability is denied meaningful access to a benefit. 3 See

Alexander v. Choate, 469 U.S. 287, 301 (1985) (stating that "an otherwise qualified handicapped

individual must be provided with meaningful access to the benefit that the grantee offers [and] to

assure meaningful access, reasonable accommodations in the grantee's program or benefit may have

to be made").

2See United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 882 (2006) (holding that title II abrogates state

sovereign immunity "insofar as Title II creates a private cause of action for damages against the States for conduct that

actually violates the Fourteenth Amendment").

3Although the Court of Appeals for the Fifth Circuit and other federal courts in Texas have not addressed the

question specifically, other circuit courts have held that "reasonable modification," as it is used in the ADA, does not

create a different standard from "reasonable accommodation," as that term is used in the Rehabilitation Act. See Wong

v. Regents olUniv. oICal., 192 F.3d 807,816 n.26 (9th Cir. 1999); Theriault v. Flynn, 162 F.3d 46,48 n.3 (1st Cir.

1998). However, we note that the Court ofAppeals for the Fifth Circuit has held that the DOJ regulations requiring the

Dallas Area Rapid Transit to provide "reasonable accommodations" in its paratransit service did not apply because the

paratransit service at issue there fell under title II, subtitle B of the ADA, and was subject only to Department of

Transportation regulations. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 675 (5th Cir. 2004). The Commission's

activities relate to title II, subtitle A of the ADA and are regulated by the DOJ.

The Honorable Rodney Ellis - Page 3 (GA-0579)

In Jones v. City ofMonroe, a driver who suffered from multiple sclerosis brought suit against

a municipality on the ground that the city's parking program violated title II ofthe ADA by refusing

to provide her with "meaningful access" to the parking program. Jones v. City ofMonroe, Mich.,

341 F.3d 474, 477 (6th Cir. 2003). Although the Court of Appeals for the Sixth Circuit ultimately

ruled against appellant, it nevertheless applied the "meaningful access" standard to title II of the

ADA. Id. at 479. Likewise, in Lee v.City ofLos Angeles, the Court ofAppeals for the Ninth Circuit

equated "meaningful access" with the right to services under title II ofthe ADA: "If a public entity

denies an otherwise 'qualified individual' 'meaningful access' to its 'services, programs, or

activities' 'solely by reason of his or her disability, that individual may have an ADA claim against

the public entity." Lee v. City ofLos Angeles, Cal., 250 F.3d 668, 691 (9th Cir. 2001) (footnote

omitted).

In conclusion, because there is no controlling judicial authority in Texas, we cannot say as

a matter of law that the Commission would violate title II ~fthe ADA if it fails to provide Texas

residents meaningful access to state services. On the other hand, because of persuasive authority

from other federal appellate jurisdictions, we can say that a Texas court would probably conclude

that the Commission would violate the ADA if it fails to provide Texas residents with meaningful

access to state services.

The Honorable Rodney Ellis - Page 4 (GA-0579)

SUMMARY

A court would probably find that the Texas Lottery

Commission violates the Americans with Disabilities Act ifit fails to

provide Texas residents with "meaningful access" to state services.

Very truly yours,

KENT C. SULLIVAN

First Assistant Attorney General

NANCY S. FULLER

Chair, Opinion Committee

Rick· Gilpin

Assistant Attorney General, Opinion Committee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.