Does the Texas Lottery Commission have to give disabled residents meaningful access under the ADA?

TX AG Opinion GA-0579: Must the Lottery Commission provide meaningful access under the ADA?

Plain-English summary

The Americans with Disabilities Act is a federal civil rights law that prohibits discrimination based on disability. It has three main parts: Title I (employment), Title II (services of public entities like state and local government), and Title III (places of public accommodation). State Senator Rodney Ellis asked the Attorney General whether the Texas Lottery Commission violates the ADA if it fails to provide "meaningful access" to state services. Because the question is about a state agency's services, the Attorney General analyzed it under Title II.

Title II says no qualified individual with a disability may, because of the disability, be excluded from or denied the benefits of the services, programs, or activities of a public entity. A "public entity" includes any department, agency, or instrumentality of a state, so the Commission qualifies (to the extent Title II validly abrogates the state's sovereign immunity). The Department of Justice rule implementing Title II requires a public entity to make reasonable modifications to its policies, practices, or procedures when needed to avoid disability discrimination, unless that would fundamentally alter the nature of the service.

Courts read the ADA together with section 504 of the Rehabilitation Act of 1973, its predecessor. The Supreme Court has held that an otherwise qualified individual with a disability must be given meaningful access to the benefit offered, and that reasonable accommodations may be required to assure that access. Federal appellate courts in other circuits have applied the "meaningful access" standard directly to Title II. Putting this together, the Attorney General reached a two-part answer. Because there is no controlling Texas judicial authority on the point, the office could not say as a matter of law that the Commission would violate Title II by failing to provide meaningful access. But given the persuasive out-of-circuit authority, 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.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The ADA, its implementing regulations, the Rehabilitation Act, and the case law cited here may have developed since 2007, and Fifth Circuit or Texas authority may since have addressed the question directly. Confirm the current law before relying on this analysis.

Who this opinion affected (as of 2007)

The Texas Lottery Commission and other state agencies: The opinion told the Commission that, as a Title II public entity, a Texas court would probably find it violated the ADA if it failed to give residents meaningful access to its services, even though no controlling Texas case said so as a matter of law.

Texas residents with disabilities: The opinion recognized that the meaningful-access standard from federal appellate decisions would probably apply, supporting a claim if a state agency denied access to its services because of disability.

State agency counsel: The opinion framed the analysis around Title II and the DOJ reasonable-modification rule, read in light of section 504 of the Rehabilitation Act, as the persuasive authority a Texas court would likely follow.

Common questions

Did the AG say the Lottery Commission is breaking the ADA?
No. The opinion said that because there is no controlling Texas judicial authority, it could not conclude as a matter of law that the Commission would violate Title II. It said a Texas court would probably find a violation if the Commission failed to provide meaningful access.

What does 'meaningful access' mean here?
It comes from Rehabilitation Act case law: a qualified individual with a disability must be given meaningful access to the benefit a public entity offers, and reasonable accommodations or modifications may be required to assure that access.

Why does the Rehabilitation Act matter to an ADA question?
Because Title II requires compliance with regulations very similar to section 504 of the Rehabilitation Act, and courts look to that Act, the ADA's predecessor, to interpret the ADA.

Background and statutory framework

The ADA prohibits disability discrimination across three titles: employment (42 U.S.C. §§ 12111-12117; 29 C.F.R. pt. 1630), public entities (42 U.S.C. §§ 12131-12165; 28 C.F.R. pt. 35), and public accommodations (42 U.S.C. §§ 12181-12189; 28 C.F.R. pt. 36) (see generally 42 U.S.C. §§ 12101-12213). Title II covers a "public entity," defined to include any department, agency, or instrumentality of a state (42 U.S.C. § 12131(1)(b)), and bars excluding a qualified individual with a disability from a public entity's services, programs, or activities (42 U.S.C. § 12132). The Texas Lottery Commission is established by the State Lottery Act (Tex. Gov't Code Ann. §§ 466.001-.303), and Title II abrogates state sovereign immunity insofar as it creates a damages action for conduct that actually violates the Fourteenth Amendment (United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 882 (2006)). The DOJ rule requires reasonable modifications unless they would fundamentally alter the service (28 C.F.R. § 35.130(b)(7)).

Courts interpret the ADA using section 504 of the Rehabilitation Act (29 U.S.C. § 794; Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1060 n.4 (5th Cir. 1997); Tex. Att'y Gen. Op. No. JC-0050 (1999)), which requires reasonable accommodations when a person with a disability is denied meaningful access (Alexander v. Choate, 469 U.S. 287, 301 (1985)). Other circuits treat "reasonable modification" and "reasonable accommodation" as the same standard (Wong v. Regents of Univ. of Cal., 192 F.3d 807, 816 n.26 (9th Cir. 1999); Theriault v. Flynn, 162 F.3d 46, 48 n.3 (1st Cir. 1998)), and the Fifth Circuit has noted a paratransit exception falling under a different subtitle (Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 675 (5th Cir. 2004)). Federal appellate courts have applied the "meaningful access" standard to Title II (Jones v. City of Monroe, Mich., 341 F.3d 474, 477 (6th Cir. 2003); Lee v. City of Los Angeles, Cal., 250 F.3d 668, 691 (9th Cir. 2001)). With no controlling Texas authority, the opinion concluded a Texas court would probably find an ADA violation if the Commission failed to provide meaningful access.

Citations

Statutes and regulations:

• 42 U.S.C. §§ 12101-12213 (2000 & Supp. IV 2004)
• 42 U.S.C. §§ 12111-12117 (2000 & Supp. IV 2004)
• 42 U.S.C. §§ 12131-12165 (2000 & Supp. IV 2004)
• 42 U.S.C. §§ 12181-12189 (2000)
• 42 U.S.C. § 12131(1)(b) (2000)
• 42 U.S.C. § 12132 (2000)
• 29 C.F.R. pt. 1630 (2006)
• 28 C.F.R. pt. 35 (2006)
• 28 C.F.R. pt. 36 (2006)
• 28 C.F.R. § 35.130(b)(7) (2006)
• Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794 (2000 & Supp. IV 2004)
• Tex. Gov't Code Ann. §§ 466.001-.303 (Vernon 2004)
• Tex. Att'y Gen. Op. No. JC-0050 (1999)

Cases:

• United States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 882 (2006)
• Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1060 n.4 (5th Cir. 1997)
• Alexander v. Choate, 469 U.S. 287, 301 (1985)
• Wong v. Regents of Univ. of Cal., 192 F.3d 807, 816 n.26 (9th Cir. 1999)
• Theriault v. Flynn, 162 F.3d 46, 48 n.3 (1st Cir. 1998)
• Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 675 (5th Cir. 2004)
• Jones v. City of Monroe, Mich., 341 F.3d 474, 477 (6th Cir. 2003)
• Lee v. City of Los Angeles, Cal., 250 F.3d 668, 691 (9th Cir. 2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0579
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0579.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 8, 2007

The Honorable Rodney Ellis
Chair, Committee on Government Organization
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0579

Re: Whether the Texas Lottery Commission violates the Americans with Disabilities Act if 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.[1]

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 id. §§ 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 of a 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, the DOJ has published an appendix providing a section-by-section analysis of those rules with commentary to aid in their implementation. See id. app. A (Section-By-Section Analysis); id. 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 of a "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 of the ADA to the extent that title II validly abrogates a state's sovereign immunity.[2] See id.; TEX. GOV'T CODE ANN. §§ 466.001-.303 (Vernon 2004) (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 of a 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 of the 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").

In Jones v. City of Monroe, a driver who suffered from multiple sclerosis brought suit against a municipality on the ground that the city's parking program violated title II of the ADA by refusing to provide her with "meaningful access" to the parking program. Jones v. City of Monroe, 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 of Los Angeles, the Court of Appeals for the Ninth Circuit equated "meaningful access" with the right to services under title II of the 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 of Los 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 of the 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.

SUMMARY

A court would probably find that the Texas Lottery Commission violates the Americans with Disabilities Act if it 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

Footnotes

[1] Letter from Honorable Rodney Ellis, Chair, Senate Committee on Government Organization, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas (Apr. 25, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us).

[2] See 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").

[3] Although 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 of Univ. of Cal., 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 of Appeals 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.