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. 

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 

(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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                                      No. 14-50037
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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                                  No. 14-50037
                             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, 

,
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, 

, 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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                                        No. 14-50037
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 

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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                                 No. 14-50037
      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, 

, 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, 

, 234 (5th Cir. 2010)
(per curiam). Further, “[t]he parties have not pointed to any reason why Title
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                                  No. 14-50037
II and [the Rehabilitation Act] should be interpreted differently.” Frame v.
City of Arlington, 

, 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.” 

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].” 

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,

, 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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                                    No. 14-50037
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.”       

(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., 

, 842–43 (1984).
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                                      No. 14-50037
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., 

, 587 (2000) (citing Skidmore v. Swift & Co., 

, 140
(1944)).
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                                  No. 14-50037
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, 

, 307–08 (Va. 2009); Paxton v. State Dep’t of Tax & Revenue, 

, 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. 

–08; 

.
      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. 

; 

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                                       No. 14-50037
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., 

, 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.,

, 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, 

, 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, 

, at *5–6 (E.D. La. Aug. 14, 2013)
(same); Reeves v. Queen City Transp., Inc., 

, 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, 

, 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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                                  No. 14-50037
      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.” 

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 

(“[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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                                  No. 14-50037
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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                                No. 14-50037
dismissed with prejudice for failure to state a claim upon which relief can be
granted.




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                                         No. 14-50037
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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                                       No. 14-50037
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, 

, 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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                                  No. 14-50037
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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                                         No. 14-50037
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, 

, 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., 

, 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, 

, 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.” 

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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                                      No. 14-50037
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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                                        No. 14-50037
       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 

(“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].”); 

(“[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.”); 

(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 

(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 

. 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. 

       12 

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                                       No. 14-50037
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 

       14  See 

        15 See 

        16 See 

        17 See 

        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,” 

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

and the importance of assertiveness, as drivers and as passengers,
see 

They must also sign “a written commitment . . . to family and
friends that the student will not engage in dangerous driving habits.” 

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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                                   No. 14-50037
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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                                     No. 14-50037
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, 

(D. Kan. 1994).
      20 See Reeves v. Queen City Transp., Inc., 

(D. Colo. 1998).
      21 See Noel v. N.Y.C. Taxi & Limousine Comm’n, 

(2d Cir. 2012).

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                                        No. 14-50037
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, 

, 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, 

, 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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                                     No. 14-50037
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, 

, 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, 

, 675 (2001))).
       25 28 C.F.R. § 35.130(7).

                                            25