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 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.
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
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, 598 F.3d 184, 187-88 (5th Cir. 2010).
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.
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, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 driver education schools of their ADA obligations and its failure to deny licenses to driver education schools that violate the ADA.
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
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, 528 U.S. 141, 150-51, 120 S.Ct. 666, 145 L.Ed.2d 587 (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, 610 F.3d 231, 234 (5th Cir.2010) (per curiam). Further, "[t]he parties have not pointed to any reason why Title II and [the Rehabilitation Act] should be interpreted differently." Frame v. City of Arlington, 657 F.3d 215, 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." Id.
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
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, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (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 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." Frame, 657 F.3d at 227 (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).
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
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).
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, 278 Va. 142, 677 S.E.2d 304, 307-08 (2009); Paxton v. State Dep't of Tax & Revenue, 192 W.Va. 213, 451 S.E.2d 779, 784-85 (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. Winborne, 677 S.E.2d at 307-08; Paxton, 451 S.E.2d at 785.
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
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., 731 F.3d 901, 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., 840 F.Supp. 1328, 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, 687 F.3d 63, 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, 2013 WL 4434911, at *5-6 (E.D.La. Aug. 14, 2013) (same); Reeves v. Queen City Transp., Inc., 10 F.Supp.2d 1181, 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, 849 F.Supp. 1429, 1441-42 (D.Kan.1994) (holding that city is not liable for inaccessible restaurants and liquor stores it licenses).
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." Id. Thus, we 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,
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.
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 dismissed with prejudice for failure to state a claim upon which relief can be granted.
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
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.
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 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."
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 necessary one.
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
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.
4. TEA's Role
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.
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
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 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
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 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,
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."
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.
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.
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.