Why is San Francisco fighting so hard to maintain its inaccessible parks — and trying to undermine enforceability of the ADA in the process?
Amy Robertson, Partner, Fox & Robertson
Ivana Kirola represents a class of people with mobility disabilities who have been denied access to San Francisco’s parks and recreational areas in violation of Title II of the Americans with Disabilities Act (“ADA”) which prohibits disability discrimination by state and local governments. The Impact Fund and the Disability Rights Education and Defense Fund (DREDF) recently filed their second amicus brief in connection with the matter’s third trip to the Ninth Circuit. This most recent amicus brief — joined by 14 other civil and disability rights organizations — supported Ms. Kirola and the class in protecting the district court’s systemic injunction and pushing back on the City’s belated arguments attacking the fundamental enforceability of the ADA’s requirements for physical and architectural access.
Kirola v. City and County of San Francisco was filed in 2007, a class was certified in 2010, and the case was tried in 2011. Without attempting to summarize the almost 20-year history of this case, the most recent district court order —- currently before the Ninth Circuit — found that both the City’s policies and the plaintiffs’ evidence of its violation of ADA standards justified systemic injunctive relief. Accordingly, the court ordered the City (1) to survey and remedy violations at all newly constructed or altered parks and recreation facilities; and (2) to adopt policies to ensure compliance with applicable standards going forward.
The City’s appeal raised nine separately-identified issues, including several that had previously been resolved by the Ninth Circuit and several that had never been presented to the district court. It requested that the court overrule four Circuit precedents.
Among the City’s new arguments were two that struck at the heart of private enforcement of Title II of the ADA.
First, the City argued that, under the Supreme Court’s Loper Bright decision — which overruled the Chevron standard of deference to administrative regulations — violation of the DOJ's ADA accessibility standards should no longer be considered a violation of the ADA itself. Instead, for each noncompliant feature, a court would need to “independently consider whether meaningful access is provided.” The Ninth Circuit had already explained — in the first Kirola appeal — that “courts do not have the institutional competence” to create physical access guidelines, in contrast to administrative agencies that have “personnel with [the] specific skills” necessary to do so.
In addition, as our amicus brief explained, the ADA’s regulations and accessibility standards have the force of law, based on express Congressional delegation, the ADA’s statutory rule of construction, and 40 years of precedent which the Supreme Court expressly did not call into question in Loper Bright. To take a single — but dispositive — example, the text of the ADA includes a provision entitled “Construction” that instructs that nothing in the ADA shall be construed to apply a lesser standard than Section 504 of the Rehabilitation Act and various agencies' 504 regulations. This effectively ratifies almost 50 years of regulations materially similar to the DOJ’s Title II regulations and access standards. For these reasons, the Title II regulations continue to be entitled to deference.
The City also argued that there is no private right of action to enforce the ADA’s accessibility standards. The Supreme Court’s decision in Alexander v. Sandoval held that there is no private right of action to enforce regulations that go beyond the requirements of statutory language. For many of the same reasons that Loper Bright does not diminish the force of the Title II regulations, the logic of Sandoval dictates these regulations remain enforceable through a private right of action: the delegation and ratification in Title II’s statutory language demonstrates that the regulations — specific to Kirola, those requiring accessible new construction and alterations — are coextensive with the requirements of the statute itself.
These arguments — attempting to limit the force of ADA regulations based on Loper Bright and Alexander v. Sandoval — are being asserted in a number of different contexts these days. They’re wrong. For more detail, here are an article about Loper Bright and ADA regulations and a blog post about private rights of action to enforce Title II regulations.
Finally, the City challenged the district court’s systemic injunction and several key holdings that supported it, including those relating to standing and class certification. The amicus brief explained that both Congress and the Ninth Circuit made systemic injunctive relief central to the enforcement of the ADA and that a systemic challenge to discriminatory barriers was precisely the sort of case for which Rule 23(b)(2) was designed.