             Case: 16-12647   Date Filed: 08/17/2018   Page: 1 of 65


                                                                       [PUBLISH]

                          ________________________

               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT
                        ________________________

        Nos. 16-12647, 17-10143, 17-10144, 17-10148 through 17-10154,
          17-10193 through 17-10196, 17-10198, 17-10199, 17-10200,
               17-10202, 17-10203, 17-10205 through 17-10209,
            17-10212 through 17-10214, 17-10216 through 17-10218
                         ________________________

                D.C. Docket No. 6:14-cv-01544-ACC-GJK, et al.


A.L. by and through D.L., as Next Friend, Parent and Natural Guardian,
S.J.K, by and through S.L.K. as Next Friend, Parent and
Court-Appointed Guardian,
et al.,

                                                            Plaintiffs-Appellants,
                                     versus

WALT DISNEY PARKS AND RESORTS US, INC.,
                                                             Defendant-Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                               (August 17, 2018)
                 Case: 16-12647     Date Filed: 08/17/2018       Page: 2 of 65


Before NEWSOM and HULL, Circuit Judges, and ROYAL,* Judge.

HULL, Circuit Judge:

       This is a consolidated appeal of 30 separate lawsuits. Most plaintiffs-

appellants are individuals with severe autism. Defendant-appellee is Walt Disney

Parks and Resorts US, Inc. (“Disney”), a division of The Walt Disney Company.

       In separate lawsuits, plaintiffs filed claims alleging that Disney, at six of its

theme parks, fails to accommodate their disabilities, in violation of Title III of the

Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12182. Plaintiffs allege

that their severe disabilities include an inability to comprehend the concept of time,

defer gratification, and wait for rides, as well as strict adherence to a pre-set

routine of rides in a specific order. Plaintiffs therefore contend that access to all of

Disney’s rides must be both nearly immediate and in each plaintiff’s individual,

pre-set order to accommodate fully their impairments.

           Disney responds that it accommodates plaintiffs’ disabilities because its

current Disability Access Service (“DAS”) program allows cognitively disabled

guests like the plaintiffs (1) to enter immediately all rides with waits of less than 15

minutes, which is most rides, (2) to schedule appointment times for rides with

longer waits, and (3) to never have to stand in a physical line for any ride. In each

case, the district court granted Disney summary judgment and concluded that the

       *
         Honorable C. Ashley Royal, Judge for the United States District Court for the Middle
District of Georgia, sitting by designation.


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DAS program already accommodates plaintiffs’ disabilities and that revising the

DAS program is not necessary for plaintiffs to have equal access and enjoyment of

Disney’s parks. Our opinion is organized as follows.

                                               CONTENTS
    I. DISNEY THEME PARKS ..............................................................................4
        A. General Background .................................................................................. 4
        B. FastPass System......................................................................................... 6
        C. Re-admission Passes .................................................................................. 8
        D. Disability Access Service Program (DAS) ............................................... 9
        E. Individualized Accommodations ............................................................. 13
        F. Advance Planning .................................................................................... 14
   II. AUTISM AS A DISABILITY ......................................................................15
  III. PLAINTIFFS’ EVIDENCE ...........................................................................20
        A. Testimony of Plaintiffs’ Parents .............................................................. 20
        B. Day-in-the-Park Narratives for Plaintiffs A.L., A.B., S.M., and J.M. .... 25
        C. Expert Dr. Joette James ........................................................................... 28
        D. Scientific Studies ..................................................................................... 30
  IV. DISNEY’S EVIDENCE ................................................................................32
        A. Expert Dr. Jill Kelderman........................................................................ 33
        B. Expert Dr. Jack Spector ........................................................................... 35
   V. PROCEDURAL HISTORY ..........................................................................36
  VI. STANDARD OF REVIEW ...........................................................................39
 VII. DISCUSSION ................................................................................................40
        A. Title III of the ADA ................................................................................. 40
        B. Definition of Disability............................................................................ 41
        C. Blanket Policy.......................................................................................... 42
        D. Claims Based on § 12182(b)(2)(A)(ii) .................................................... 46



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        E. Necessary Modifications ......................................................................... 48
        F. Analysis of “Necessary” .......................................................................... 54
        G. Reasonableness and Fundamental Alteration .......................................... 59
        H. Intentional Discrimination Cause of Action............................................ 62
VIII. CONCLUSION..............................................................................................65
                                I.       DISNEY THEME PARKS

        To evaluate plaintiffs’ claims that Disney’s DAS program does not

adequately accommodate their disabilities, we discuss Disney’s parks, its pass

system for accessing rides, and how the DAS program works in that context.

A.      General Background

        Disney’s six theme parks at issue include Disneyland and Disney California

Adventure, both located in California; and the Magic Kingdom, Epcot, Disney’s

Hollywood Studios, and Disney’s Animal Kingdom, which are all part of the Walt

Disney World Resort in Florida.

        These parks are popular vacation destinations. In 2017, the Magic

Kingdom in Florida received over 20 million guests. This works out to an average

of almost 55,000 visitors per day, every day of the year. The same year, Disney

California Adventure, the least visited of Disney’s parks in the United States,

received over 9.5 million visitors or around 26,000 per day. 1




        1
       See Themed Entm’t Ass’n, Theme Index and Museum Index 2017: Global Attractions
Attendance Report 10 (2018).


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       Each theme park contains rides and other types of attractions. For

simplicity, we use the term “ride” to refer collectively to the rides and attractions

that may require waiting in line before boarding. Disneyland has 46 rides; the

Magic Kingdom has 40; Animal Kingdom has 39; Epcot has 29; California

Adventure has 24; and Hollywood Studios has 11. The numbers of rides vary over

time so these are approximate numbers. The density of the rides varies between

theme parks because the parks vary greatly in geographic area.2

       The parks offer activities with no lines or short lines, including parades,

shows, concerts, characters, stores, and restaurants. Many rides also have no wait

times. A guest can walk up and get on many rides within 5 to 10 minutes. Some

popular rides, however, have wait times from 10 to 30 minutes. The newest or

most popular rides may involve wait times ranging from 30 to 90 minutes or more.

       To reduce wait times, Disney introduced a mobile app, called “My Disney

Experience.” The app contains a map of the park and shows the location of each

ride by name. Using the map, a guest can see what rides are available and the

location of each ride in relation to the guest’s current location. The map shows in

“real time” the wait time, if any, for every ride.


       2
         Disney’s Animal Kingdom, the largest park, spreads across 580 acres; Epcot covers 300
acres; Disney’s Hollywood Studios occupies 135 acres; the Magic Kingdom takes up 107 acres;
Disneyland packs its attractions into 85 acres; and Disney California Adventure, the smallest
park, is 72 acres. Even at the smaller parks with the highest density of rides, guests can expect to
walk several miles per day getting around the park. Disney has a robust program for guests with
mobility issues, including motorized vehicles.


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      Wait times for rides depend on a number of factors, including: the popularity

of the ride; the day of the week; the time of day; the time of year; the weather

conditions; whether the ride is running at less than full capacity; whether a nearby

ride experienced an unexpected shutdown; and whether a nearby parade ended

recently. When guests wait for rides, they do so in one of two lines: (1) the

Stand-By line; or (2) the FastPass line.

      The Stand-By line operates this way. A guest joins the line at the end and

moves up to the front as the people ahead board the ride. If a ride has a 60-minute

wait, the guest waits physically in the Stand-By line for 60 minutes. Anyone

wishing to board the ride with the guest must also wait physically in the Stand-By

line. A guest cannot hold a place in line for his group.

B.    FastPass System

      To reduce wait times, Disney developed the FastPass system, which allows

guests to enter immediately at least three rides and avoid Stand-By lines. All

guests have access to the FastPass system, which has evolved over the years.

      Disney’s present version of FastPass is the FastPass+ system. With

FastPass+, a guest can make advance reservations for up to three rides for each day

of his visit. A guest might reserve one ride at 10:00 a.m., one at 1:30 p.m., and one

at 4:00 p.m. At each of those reserved times—or within an “arrival window”

around the reserved time—the guest can go to the ride and board through the



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express FastPass line, which typically involves a wait of no more than 5 to 10

minutes. This eliminates the need to stand physically in a line for those three rides.

      FastPass+ reservations are available on a first-come, first-served basis.

FastPass+ reservation times are part of each ride’s capacity inventory. Once

capacity is reached for the ride, no more FastPass+ reservations for that ride are

granted for that day. All guests who have purchased an admission ticket to a

theme park can make their FastPass+ selections up to 30 days in advance. If a

guest is staying at a Disney Resort hotel, the guest can make his FastPass+

selections up to 60 days prior to check-in.

      The FastPass+ system has another valuable benefit. After the guest has used

his three advance FastPass+ reservations each day, the guest while in the park can

make another FastPass+ selection, depending on availability. The guest can make

this fourth reservation at the rides, at in-park kiosks, or on Disney’s mobile app.

After using his three advance FastPass+ reservations, the guest may hold only one

subsequent reservation at a time. The guest must use that fourth reservation before

the guest makes a fifth.

      Guests in the park who did not make advance reservations can still use the

FastPass+ system and make reservations at rides, kiosks, or on the mobile app.

However, for the most popular rides, the FastPass reservations for a given day may

already be taken by the time the day begins.



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C.     Re-admission Passes

       Disney’s staff also issues a limited number of instant access passes, known

as re-admission passes or Re-ad Passes. A Re-ad Pass allows a guest to access

immediately a ride by going to the short FastPass line. A Re-ad Pass is good for

one person and one use only. Disney’s park employees, known as “cast members,”

can issue Re-ad Passes at Guest Relations or out in the park.

       A Re-ad Pass has benefits over a FastPass reservation. A guest can use a

Re-ad Pass at any time and for any ride, whereas a FastPass reservation is for a

specific ride at a set time and must be used within an hour of that time. To

illustrate, if a guest has two Re-ad Passes, the guest can access the same ride twice,

even if it is the most popular ride with a long Stand-By wait time.

       A guest cannot purchase or reserve a Re-ad Pass. Disabled guests can

request Re-ad Passes at Guest Relations, but the staff has discretion whether to

grant them. 3 Re-ad Passes are also an ameliorative tool that cast members may

deploy when a guest, whether disabled or not, has a negative or disappointing

experience.




       3
         The record does not contain written guidelines of how Guest Relations exercise their
discretion when issuing Re-ad Passes. Disney trains Guest Relations cast members to work with
disabled guests, determine how long their park visit will be, help with planning, and evaluate
whether Re-ad Passes are necessary.


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D.    Disability Access Service Program (DAS)

      Disney’s primary accommodations for guests with cognitive disabilities,

including autism, involve the DAS program, where Disney issues a special access

card to disabled guests (the “DAS Card”). Disney introduced the DAS program on

October 9, 2013. Disney’s website has a 23-page resource guide, entitled “Guests

with Cognitive Disabilities including Autism Spectrum Disorder (ASD)” (the

“Guide”). As to the DAS program, its website also includes a 2-page “Fact Sheet”

and a Frequently Asked Questions (“FAQs”) section. The DAS program is

designed for guests who are unable to tolerate extended waits at rides due to their

cognitive disabilities.

      DAS Cards are obtained at Guest Relations, which is typically located near

the main entrance of a park. Disney does not require disabled guests or their

parents to present any medical information or proof about their autism or cognitive

disabilities to obtain a DAS Card. Rather, the parent or other person with the guest

goes to Guest Relations at the main entrance and advises Disney that the group

includes a disabled guest. The registration process includes taking a photo of the

guest or a guardian. Disney then issues the DAS Card.

      The DAS Card provides significant benefits. The DAS Card allows a

disabled guest to obtain scheduled times for all rides, so that he never has to stand




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physically in a line for any ride at any time. After the DAS program was

introduced, all plaintiffs ultimately visited a Disney park and received a DAS Card.

      The way the DAS program works is this. A guest holding a DAS Card can

obtain a “return time,” also known as an “appointment time,” to visit the rides in

the park. DAS “return times” are available either at the individual rides or at

kiosks throughout the park. The disabled guest does not personally need to be

present to obtain a “return time”; anyone in the guest’s group can do so. However,

the DAS Cardholder must be present to board the ride and “redeem” the return

time. When the disabled guest and his group arrive at that “return time,” they

board the ride through the short FastPass line, with very little to no wait.

      Once the “return time” is obtained for a ride, the guest and his entire group

are not required to wait in the physical Stand-By line for that ride. The disabled

guest and his group can use that interval time, which is unavailable to nondisabled

guests, to enjoy the many other activities of the park. Those activities include

parades, concerts, characters, shows, restaurants, stores, attractions, and even rides

with no wait at all.

      For example, at 10:00 a.m. a disabled guest and his group could obtain a

return time of 11:30 a.m. for the most popular ride that has long wait times, and

then, between 10:00 a.m. and 11:30 a.m., they could visit rides or attractions that

have no wait or could use one of their three FastPass+ reservations to access a ride



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with a wait. Kiosks in the park, as well as Disney’s mobile app, tell guests what

other rides currently have no wait at all or the amount of the wait time if there is

one.

       The disabled guest and his group may hold only one DAS Card “return

time” at a time. Once they go on the ride, they can schedule another “return time”

at the ride or a kiosk. While the guest can have only one return time at a time,

DAS Card entitlements never run out for the day and can always be requested.

       The DAS Card works on the same principle as the FastPass system but has

more benefits. First, although a disabled guest with a DAS Card (like any guest)

can still make three FastPass+ reservations in advance, the DAS Cardholder does

not need to wait until his three FastPass+ appointments are used before obtaining

an additional “return time.” Rather, the DAS Cardholder can begin making

appointments with his DAS Card as soon as he arrives at the park in the morning,

including when he initially obtains his DAS Card at Guest Relations. Thus, every

DAS Cardholder enters a Disney park with four opportunities to enter the FastPass

line for different rides: the three advance reservations through FastPass+ and the

first DAS Card “return time.”

       Second, with a DAS Card, a disabled guest’s appointment time is good until

the end of the day. The guest is not obliged to board the ride at a particular time or




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even within an arrival window. Instead, the DAS guest may return to the ride at

any point after the scheduled return time and still board immediately.

         Third, when a ride has a posted wait time of 15 minutes or less, a DAS

Cardholder is allowed to board the ride immediately, with no wait at all. This

feature is unique to the DAS Card and can be done all day long with no limitation.

The majority of Disney’s rides have wait times of 15 minutes or less. And if a

popular ride has a posted wait time of an hour, a guest with a DAS Card can obtain

a “return time” for that ride and then, in the intervening time, that guest can go on

three rides with wait times of 15 minutes or less and be waved right in to those

rides.

         By contrast, nondisabled guests who wish to ride the same popular ride—

except those who used one of their three FastPass+ reservations—must wait in the

physical Stand-By line.

         In sum, the DAS Card undisputedly does three things: (1) it eliminates the

need for a disabled guest to wait in a physical line, even for popular rides with long

waits; (2) it provides a disabled guest with immediate access to rides that have a

wait of 15 minutes or less; and (3) if a DAS Cardholder wishes, it provides access

to more rides in a day than are available to a guest without a DAS Card.




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      When first introduced, a DAS Card was a physical card, but now it is loaded

onto the guest’s electronic ticket. Every member of the group is electronically

associated with the DAS Cardholder.

E.    Individualized Accommodations

      Disney also offers more individualized accommodations to guests who

obtain a DAS Card. In its Guide, Disney acknowledges that some cognitively

disabled guests may need more individualized accommodation, stating:

             To access our attractions, Guests with cognitive
             disabilities have several options including use of the
             standard queue, Disney FASTPASS service, Disney
             FastPass+, the Disability Access Service Card, and/or
             additional accommodations based on individual service
             need. To determine which option or options are best for
             your party, visit the Guest Relations lobby location near
             the entrance at any of the four Theme Parks.

(emphasis added). The Guide directs guests to inquire about additional

accommodations at Guest Relations, explaining: “To learn more about the

Disability Access Service Card as well as additional accommodations available

based on individual service needs, visit the Guest Relations lobby location near the

entrance at any of the four Theme Parks.”

      Disney’s public FAQs include: “What will Disney Parks do if a Guest is

concerned the DAS Card doesn’t meet their needs?” The FAQ’s respond that

guests should go to Guest Relations to discuss special accommodations if they are

concerned the DAS Card does not meet their needs.

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      A Disney operations manager described other accommodations based on

needs as: (1) planning an itinerary through an in-person meeting at Guest

Relations; (2) writing in the first attraction to be visited on the DAS card,

(3) issuing attraction Re-ad Passes, and (4) thoroughly explaining the FastPass+

system. When helping plan an itinerary, a Guest Relations cast member takes into

account the guest’s plans, the weather, and “the environment of the day,” given

that certain days and times are busier than others.

      In addition to the DAS Card, some plaintiffs requested and received Re-ad

Passes, which provide immediate access to a ride. Some requested Re-ad Passes

but did not receive as many as they wanted. Some plaintiffs received Re-ad Passes

during some visits but not during other visits. Some plaintiffs do not mention Re-

ad Passes at all in their affidavits or depositions.

F.    Advance Planning

      While Disney offers assistance, its Guide also recommends that families

with a cognitively disabled guest plan their visits in advance. The Guide suggests

that families (1) purchase their tickets in advance to avoid the possibility of waiting

in line at ticket locations, (2) create or review a visual schedule or timeline of the

day, (3) go over the timeline to help the disabled guest learn the routine, (4) study

maps of the theme parks, (5) watch videos describing different rides, so they know

what to expect, and (6) practice waiting in line. The Guide also provides guests



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with a list of every ride in each theme park and indicates which rides include scents

or smells, flashing lights, loud noises, periods of darkness, bumps, a fast pace,

elevation off the ground, wetness, or an element of surprise.

      The Guide suggests that a family with a disabled guest may wish to bring

these items on their visit: ear plugs or headphones to protect against loud noises; a

favorite device or activity that might distract and keep a disabled guest occupied

during any periods of waiting; reinforcers for good behavior; a calming sensory toy

to protect against over stimulation; and a bracelet or nametag with contact

information.

      Having outlined Disney’s current pass system and cognitive disability

program, we examine the evidence about plaintiffs’ severe disabilities and why

plaintiffs claim Disney’s DAS program does not adequately accommodate them.

                       II.      AUTISM AS A DISABILITY

      All but 4 of the 36 plaintiffs-appellants are on the autism spectrum. Some

plaintiffs identify autism as their only disability, whereas many plaintiffs

experience other disabilities in addition to autism. These other conditions include

Down syndrome, attention deficit hyperactivity disorder, verbal apraxia,

oppositional defiant disorder, obsessive compulsive disorder, Hirschsprung’s

disease, atresia, megacephaly, hydrocephalus, cranial cysts, cerebral palsy, sensory




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disorder, and/or bipolar disorder, among others. Because plaintiffs’ evidence and

briefs focus on their autism-related impairments, we do too. 4

       Plaintiffs divide the varying degrees of autism into three main groups: high

functioning, mild or moderate, and severe. Disney has not tried to claim that some

plaintiffs’ autism or other cognitive disabilities are more severe than others.

Rather, for purposes of summary judgment, Disney accepts that all plaintiffs have

severe autism.

       Given their severe disabilities, plaintiffs contend that: (1) although the DAS

Card eliminates waiting in a physical line, plaintiffs still must endure a “virtual”

wait to go on their rides of choice; (2) plaintiffs cannot comprehend time, defer

gratification, and wait virtually for rides; (3) plaintiffs must visit rides in a pre-set

order, including repeat turns on the same ride; and (4) Disney must provide them a

pass to all rides that guarantees a maximum 10 to 15 minute wait, including repeat

turns on the same ride. In response, Disney claims plaintiffs’ requests for near

immediate entry to all rides in a pre-set order without a virtual wait do not flow

from their neurological impairments (as plaintiffs claim) but from their or their

parents’ personal preferences (as the district court found).



       4
         The 36 plaintiffs are in 30 families, hence 30 lawsuits. At oral argument, plaintiffs’
counsel made clear that no plaintiff is high functioning and no plaintiff could be described as
moderately autistic. Four individual plaintiffs do not have an autism diagnosis but are “severely
challenged in other ways.” Plaintiffs in the separate lawsuits who were more high functioning
did not appeal.


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      The critical evidentiary debate in this case is over two behavioral challenges

that plaintiffs claim arise from their severe autism: (1) the inability to wait; and

(2) adherence to the same routine. We first discuss some general medical and

behavioral facts about autism that are not in dispute. We then examine the

conflicting evidence about these two behavioral challenges at issue.

      Generally, autism spectrum disorder (“ASD”) and autism are terms for a

group of complex disorders of brain development. The spectrum of disorders

encompassed by these terms is very broad; individuals with autism may be mildly

affected or may be profoundly disabled. Autism is characterized by difficulties in

social interaction, verbal and nonverbal communication, learning, and repetitive

behaviors. The disorder can be associated with intellectual disability, difficulties

in motor coordination and attention, and physical health issues. See Garrido v.

Dudek, 731 F.3d 1152, 1155 n.1 (11th Cir. 2013).

      Both parties cite the Diagnostic and Statistical Manual of Mental Disorders,

Fifth Edition (“DSM-5”), which sets forth the diagnostic criteria of autism,

including these deficits:

             A. Persistent deficits in social communication and social
             interaction across multiple contexts, as manifested by the
             following, currently or by history (examples are
             illustrative, not exhaustive, see text):

                 1. Deficits in social-emotional reciprocity . . . .




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                 2. Deficits in nonverbal communicative behaviors
                 used for social interaction . . . .

                 3. Deficits in developing, maintaining, and
                 understanding relationships . . . .

Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders

(“DSM-5”) 50–51 (5th ed. 2013). The DSM-5 also includes these behaviors and

interests as diagnostic criteria:

             B. Restricted, repetitive patterns of behavior, interests, or
             activities, as manifested by at least two of the following,
             currently or by history (examples are illustrative, not
             exhaustive, see text):

                 1. Stereotyped or repetitive motor movements, use of
                 objects, or speech . . . .

                 2. Insistence on sameness, inflexible adherence to
                 routines, or ritualized patterns of verbal or nonverbal
                 behavior . . . .
                 3. Highly restricted, fixated interest that are abnormal
                 in intensity or focus . . . .
                 4. Hyper- or hyporeactivity to sensory input or
                 unusual interest in sensory aspects of the
                 environment . . . .

                 [....]

Id.

      Autism is also understood as a brain-based disorder. Research suggests that

functional areas within the brains of people with autism are not as well-coordinated

as those within normally developing brains. Research has identified other

biological or structural differences between the brains of people with autism and

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normally developing brains, “especially related to volumes of gray matter versus

white matter, and regional variations in structures such as the corpus callosum,

limbic system, cerebellum, basal ganglia, thalamus, and frontal lobes.” One study

found that “there is often unusually accelerated head and brain growth during the

first two years of life in many individuals with [autism].”

      Under the above section discussing “insistence on sameness” and

“adherence to routines,” the DSM-5 provides examples of behaviors including

“extreme distress at small changes, difficulties with transitions, rigid thinking

patterns, greeting rituals, need to take same route or eat same food every day.”

See DSM-5 at 50. Courts recognize this aspect of autism. See Endrew F. ex rel.

Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. ___, ___, 137 S. Ct. 988, 996

(2017) (“Autism is a neurodevelopmental disorder generally marked by impaired

social and communicative skills, engagement in repetitive activities and

stereotyped movements, resistance to environmental change or change in daily

routines, and unusual responses to sensory experiences.” (quotation marks and

citations omitted)); United States v. Spero, 382 F.3d 803, 804 n.3 (8th Cir. 2004)

(“Affected individuals may adhere to inflexible, nonfunctional rituals or routine.”

(quoting Physician’s Desk Reference Medical Dictionary 171 (2d ed. 2000))).

      This much the parties agree on. Against this background, we review

plaintiffs’ evidence about the two claimed behavioral challenges of autism at issue.



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                             III.    PLAINTIFFS’ EVIDENCE

A.      Testimony of Plaintiffs’ Parents

        Plaintiffs submitted this lay evidence through their parents’ depositions and

affidavits about the specifics of their disabilities. 5 As a result of their severe

autism disorders, plaintiffs are largely nonverbal, will never intellectually develop

beyond an early childhood level, and will never develop social skills to even that

level. They exhibit a wide array of conditions, disabilities, non-social behaviors,

and compulsions.

        Plaintiffs’ parents similarly aver that their child has (1) an inability to wait

and delay gratification, and (2) a required adherence to routine. 6 The issue for

plaintiffs is not merely waiting in a physical line but waiting at all for a ride in a

high-stimulus environment.

        According to their evidence, plaintiffs cannot comprehend the concept of

time and are unable to wait and delay gratification for more than 10 to 15 minutes.

For plaintiffs, waiting at all to go on a ride is simply doing nothing in the present,

not anticipating something which will occur in the future. It is not a matter of


        5
          While Disney initially moved to exclude the testimony and report of plaintiffs’ expert,
there was no motion to strike the affidavits or deposition testimony of plaintiffs’ parents. The
district court referred to that evidence, as does Disney in its appellate briefs. The dispute is over
whether that testimony, along with plaintiffs’ expert, creates an issue of material fact.
        6
         At oral argument, plaintiffs’ counsel stated that “[n]early all” plaintiffs “have the need
for routine,” and “[a]ll have the inability to defer gratification.” In this regard, seven plaintiffs
testified they have no pre-set order or routine.


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learning; it is the nature of the neurological disability that makes waiting an

impossibility.

       Nearly all parents attested that their child has great difficulty waiting. Most

parents used phrases such as “inability to wait,” “no ability to understand a concept

such as waiting,” “unable to wait for long periods of time,” or “impossible . . . to

wait for long periods of time, even if the wait is not standing in a line.” Several

parents further attested that their children are “unable to understand the concept of

time to any extent comparable to non-disabled persons,” and/or that their children

“[do] not understand that a positive or fun event or activity will unfold in the future

if [they] wait[] calmly or idly in the present.”

       Nearly all parents also testified that riding in a car, for any period of time, is

not comparable to waiting for an attraction at an amusement park. Some parents

explained that “riding in a car is itself an activity; it is not idly waiting for a

different activity.” In a few cases, a plaintiff’s parent testified that the plaintiff

enjoys riding in a car as an activity in and of itself. Most often, the parents attested

that for their autistic child, a car is a more tolerable environment than an

amusement park. A car is a “calm and controllable” environment, in which a

person with autism can take a nap, use an “iPad,” watch movies, listen to music,

read books, and enjoy other distractions. In a car, “[t]he temperature, smell, noise

level, amount of light, number of people and exposure to textures can be



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manipulated to meet the needs of the person with autism by the parent.” Riding in

a car “involves motion and movement,” which can be soothing for a person with

autism. This stands in contrast to an amusement park, which involves “stimuli of

all kinds” and noise levels that “can’t be controlled.”

      As to adherence to routine, most parents testified that their children rely on

an expected, pre-set order of events and have difficulty when that order is

disrupted. Some plaintiffs live near and have visited a Disney park 10, 15, or 20

times or more. One parent described her son as being “incapable of deviating from

consistency, order and routine” when visiting a Disney park. Another parent

testified that her son has “an innate sense of the order or sequence in which we will

travel and experience the attractions,” and that “[i]f that order is disrupted, he

becomes immediately emotionally unstable.” Other parents testified similarly,

stating that a plaintiff “has a specific list and an order of the rides he must go on,”

or that a plaintiff has a “need to do things in a certain sequence” that would be

“completely disrupt[ed]” by the DAS program.

      Some parents attested to their children’s reliance on predictability and

routine without explicitly tying it to a theme park experience. Examples of such

statements include: a plaintiff “follows routines and very structured schedules in

nearly every activity and aspect of his life, and becomes very unstable when

unexpected events or stimuli occur”; a plaintiff “does not handle transition or



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changes to his routine”; a plaintiff “is very focused on routine” and any change

“can trigger his behaviors”; or a plaintiff “is very rigid in his schedule and

routines.”

      Parents also testified about what happens when their autistic child has to

wait to get on a ride or is not able to get on the rides in the same routine order

developed from prior visits. When this happens, each plaintiff is vulnerable to a

“meltdown.” What constitutes a meltdown is somewhat different for each plaintiff.

      For many plaintiffs, meltdowns include self-harming behavior. According

to their parents’ testimony, one plaintiff “hits herself, drops to the floor and

screams in terror,” another plaintiff “might smack/slug his face, and or go to the

ground and bang his head on the ground,” and a third plaintiff “can be self abusive,

including scratching her own face, hitting her head on the ground, jumping in the

air and landing on her knees, biting herself . . . pulling off her own finger and toe

nails, and scratching and picking at open sores to make them bleed.” Along with

self-harm, some plaintiffs exhibit aggressive behavior that risks harming others:

one plaintiff “can hit and kick any object around him”; another “starts to scream

and physically grab those around him.”

      Some plaintiffs’ meltdowns are not violent, but still include behaviors that

can be disturbing to other people. Meltdowns can manifest as a child “[s]oiling her

pants,” “repeatedly lick[ing] her glasses,” “running with his hand in the air



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laughing, screaming, and throwing things,” or “jumping up and down, flapping

hands wildly, screaming loudly (out of boredom and anxiety), falling to the

ground, touching anyone and everyone, eating items from the ground out of

boredom, pulling stuff off of purses, bags, strollers, and anything within reach.” In

some cases, a plaintiff experiencing a meltdown “might ‘go to the ground’ and

completely withdraw” while covering his ears and/or his face.

      The effect and severity of a meltdown also can vary because plaintiffs are

individuals of different ages and sizes. Some plaintiffs are young children. By

contrast, plaintiff M.A.C., age 20, is 5’10” tall and 250 pounds, and plaintiff A.L.,

age 22, is 6’6” tall and weighs “over 300 pounds.” Plaintiffs who are younger and

smaller may be more safely contained and controlled during a meltdown.

Although the nature and severity of the meltdown may vary, plaintiffs’ evidence,

as a whole and in the light most favorable to plaintiffs, is that their child needs a

maximum wait time of 10 to 15 minutes at all rides to avoid a meltdown and

having to leave the theme park.

      In this regard, the testimony and affidavits of each plaintiff’s parents discuss

in great detail what happened when they visited a Disney park. We give a few

examples of an individual plaintiff’s experience with the DAS Card.




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B.     Day-in-the-Park Narratives for Plaintiffs A.L., A.B., S.M., and J.M.

       Plaintiff A.L. is a 22-year-old man with autism. 7 He grew up in Florida not

far from Disney World. A.L. visited the parks often and developed a routine of the

same rides, in the same order. A.L.’s mother testified that when A.L. visits the

parks, he creates a list of his favorite rides in order, and crosses the rides off the list

as he visits each one. A.L. would have a meltdown if he did not complete the list

once he started it.

       A.L. typically visited Epcot or the Magic Kingdom. At Epcot, A.L. would

ride Test Track, Mission Space, Spaceship Earth, the Seas with Nemo and Friends,

Soarin’, and Journey Into Imagination. At the Magic Kingdom, A.L.’s “normal

pattern” was to go on 19 rides in order, but sometimes he would skip a ride. His

mother explained, “It’s always the same route. It doesn’t mean that he hits every

single ride, but it is always the same route.”

       On December 19, 2013, A.L.’s family made their first visit to the Magic

Kingdom since the introduction of the DAS Card. They arrived at 4:38 p.m. The

family, a group of six, went to Guest Relations, where they received a DAS Card

and 24 Re-ad Passes, or 4 per person in the group. A cast member went over a

map of the park and offered to help plan a route.




       7
           All ages are as alleged when the individual plaintiffs filed their complaints.


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        The family then entered the park. The first ride A.L. wanted to ride that day

was Jungle Cruise. A.L.’s mother used the group’s DAS Card at Jungle Cruise,

and received a “return time” of 45 minutes later at Jungle Cruise. A.L.’s mother

“knew that [A.L.] immediately needed, wanted to go on the Jungle Cruise,” so

instead the family members each used one of their Re-ad Passes to board the ride

immediately. The family determined that with only three Re-ad Passes remaining

per person, it would not be possible to visit all of A.L.’s regular rides in order

without some waiting, and that they would need to leave the park. A.L.’s mother

was able to “redirect [A.L.] off of his route” by getting him to “look at the parade,

look at the show,” which allowed the family to keep A.L. calm as they left the

park.

        Plaintiff A.B. is a six-year-old boy with autism. He lives not far from

Disney World in Florida. After the DAS Card was introduced, A.B. visited Disney

in October 2013 and received a DAS Card but no Re-ad Passes.

        The family used their DAS Card to obtain a return time at A.B.’s favorite

ride, where the wait time was 1 hour and 15 minutes. The family got lunch during

the wait, then returned and went on the ride. A.B. wanted to ride it again, so the

family obtained a second return time and, when the time came, went on the ride

again. Faced with waiting a third time before going on the same ride again, A.B.




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had a meltdown. A.B. had two subsequent meltdowns during his October 2013

visit, causing the family to cut the visit short.

      The family returned to Disney World in December 2013, and again in 2015

and 2016. On their recent visits, the family used their DAS Card to obtain return

times and used the FastPass+ system to make advance reservations for rides. On at

least one subsequent trip, the family received Re-ad Passes. Nevertheless, the

family had dissatisfying experiences at the parks due to A.B.’s meltdowns.

      Plaintiff S.M. is a six-year-old boy with autism, sensory processing

disorders, sensory integration, apraxia, and attention deficit hyperactivity disorder.

His sister, plaintiff J.M., is a seven-year-old with verbal apraxia, oppositional

defiant disorder, and severe attention deficit hyperactivity disorder. The family

lives in Ohio.

      S.M.’s mother testified that “[a]s a result of his autism, S.M. does not handle

transition or changes to his routine.” S.M. can manage short waits of 10 to 15

minutes, but longer waits can require some kind of external distraction, such as an

“iPad.” S.M.’s sister J.M. is able to wait, but she has anxiety and social issues

waiting in lines with many other people.

      In December 2013, the family visited the Magic Kingdom, where they

obtained a DAS Card and received Re-ad Passes. The family used the DAS Card




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in conjunction with FastPass+ and Re-ad Passes. One of J.M. and S.M.’s older

siblings had to run from ride to ride to get return times. The mother testified:

              [E]very time [S.M.] saw a ride, he started freaking out
              and wanting to go immediately. So we got smart and
              [had the elder sister] running to get return times, and we
              were trying to coordinate those with the [Re-ad Passes]
              that we had in conjunction—or in the case of one other
              park, the Fast Pass Plus.

Even with the DAS Card and Re-ad Passes, J.M. and S.M. were not able to

experience the park in a sequence that was tolerable for them.

       The record contains similar day-in-the-park narratives from all 36 plaintiffs.

C.     Expert Dr. Joette James

       Plaintiffs also submitted an expert’s report and medical studies about the

characteristics of autism. 8 Plaintiffs’ autism expert, Dr. Joette James, Ph.D., is a

clinical neuropsychologist with a specialization in developmental disabilities. In

her report, Dr. James emphasized the “brain-behavior relationships” that inform

scientific understanding of autism. According to Dr. James, individuals with

autism present deficits in “executive functions.” Dr. James reported: “Good

executive functioning requires sustained attention and effort, inhibition of




       8
        The parties each filed motions to exclude certain expert reports or portions of them
based on, inter alia, Daubert v. Merrell Dow Pharma., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
The district court granted summary judgment in favor of Disney and did not rule on those
motions. At this juncture, we consider these expert reports as part of the record on appeal.


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impulses, sound working memory (mental manipulation abilities), as well as

clerical and conceptual organizational abilities.”

      By contrast, Dr. James indicated that individuals with autism, like plaintiffs,

demonstrate “global deficits in executive functioning, both in terms of behavioral

regulation (i.e. impulse control, emotional control, flexibility), and in terms of

metacognitive skills (i.e. initiation, independent planning/organization, working

memory, and self-monitoring).” Dr. James explained that “[i]ndividuals with poor

executive control typically have difficulty regulating their emotions, controlling

impulses, using good judgment, sustaining attention, making sound decisions,

initiating appropriate courses of action, and flexibly changing course when

receiving feedback that current plans of action and behavior are not working.”

      In persons with autism, the need for “sameness and consistency . . . often

leads to high levels of anxiety when there are even minor changes in their

routines.” Dr. James cited a study of school-age children, which found that

individuals with autism “struggled particularly with shifting- that is, the capacity to

move freely from one situation, activity, or aspect of a problem to another as the

situation demands, to transition, and solve problems flexibly.”

      Dr. James considered the example of the lead plaintiff in this case, A.L.,

whom she characterized as both severely disabled and having symptoms and

behaviors like many individuals with severe autism. Dr. James opined that, “[l]ike



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many individuals with ASD, A.L. demonstrates significant executive dysfunction,

and problems with emotional/behavioral regulation, flexibility, working memory,

and language.” In particular, Dr. James opined that: (1) “characteristic of

individuals with ASD, A.L. also experiences significant difficulty with flexibility

and anxiety”; and (2) “while [A.L.] can tell time, he does not comprehend the

concept of time, nor is he able to ‘hold onto’ the idea of time in such a way as to

accurately judge its passage,” which “significantly affects A.L.’s ability to wait.”

Dr. James noted that A.L. has a “high level of rigidity” and a “biologically driven

need for consistency and sameness,” which results in his having a “nearly

inflexible order in which he approaches the rides and attractions at Disney.”

      Dr. James also testified that for a person with autism, a routine or prescribed

order is “more than [a] preference,” and is “a biologically driven mechanism.”

Any deviation from the expected order can lead to a “behavioral meltdown” or

“some kind of outburst,” even if plaintiffs never need to wait in a physical line for

a ride, and even if plaintiffs always have some alternate activity or ride in the park

available.

D.    Scientific Studies

      As to routine and sameness, one study, cited by plaintiffs, notes that

“[c]hildren with ASDs may protest vigorously when forced to transition from an

activity or topic of interest or when a usual routine is changed.” Chris Plauché



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Johnson & Scott M. Myers, Identification and Evaluation of Children with Autism

Spectrum Disorders, 120 Pediatrics 1183, 1194 (2007). Plaintiffs cite another

authority that describes “the need to preserve sameness” as one of the “behavioral

symptoms seen in children with autism.” Comm. on Educ. Interventions for

Children with Autism, Nat’l Research Council, Educating Children with Autism 97

(Catherine Lord & James P. McGee eds., 2001). The same book suggests that

these “behavioral symptoms” are related to “physiological abnormalities”

including “physiological overarousal to novel events and underarousal and slower

rates of habituation.” Id.

      As to the inability to defer gratification, plaintiffs cite a study which found

that children at the high functioning end of the autism spectrum demonstrated a

reduced ability to exercise “effortful control” and delay gratification. Susan Faja

& Geraldine Dawson, Reduced Delay of Gratification and Effortful Control

Among Young Children with Autism Spectrum Disorders, 19 Autism 91, 99–101

(2015). That study examined 42 children, half of whom had autism and half of

whom did not. Id. at 93. One at a time, the children were left for 15 minutes alone

in a room, where they were seated at a table with a small candy treat and a larger

candy treat. Id. at 95. The children were not told the wait time, but were told that

if they waited at the table until the investigator returned, they could have the larger

treat, but if they did not wait, they could have only the smaller treat. Id.



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       The investigators found that, compared with typically developing children,

the rate of children with autism who passed the test by delaying gratification for

the entire 15 minutes was lower. Id. at 97. The investigators observed that this

result was “consistent with the theoretical prediction that executive control may be

disrupted for a subset of children with ASD.” Id. The investigators also noted that

the result was consistent with information gathered from the parents of the children

with autism, who reported that their children were less likely than typically

developing children to exhibit characteristics “such as the ability to show strong

concentration, persist with tasks, wait before engaging with a task, easily stop an

activity when told ‘no,’ and enjoy just sitting quietly.” Id. Plaintiffs claim their

impairments are far more severe than those in the Faja-Dawson study. 9

                              IV.    DISNEY’S EVIDENCE

       Disney’s evidence directly contradicts plaintiffs’ evidence about these two

behavioral challenges. Disney submitted expert reports from Dr. Jill Kelderman,

Ph.D., a pediatric neuropsychologist, and Dr. Jack Spector, Ph.D., a clinical

neuropsychologist.




       9
         Plaintiffs submit that “[t]he Faja-Dawson study specifically examined children with
ASD who did not have significant intellectual impairment—they had IQs similar to those of the
control group of typically-developing children. Nor did the ASD children have diminished
verbal skills in comparison to the typically-developing children. Even with comparable
intellectual and verbal skills, the ASD children showed a diminished capacity to wait for delayed
gratification.” (citations omitted).


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A.    Expert Dr. Jill Kelderman

      As to autism generally, Dr. Kelderman acknowledged that individuals with

autism spectrum disorder can evince “[r]igidity, which can include insistence on

sameness or nonfunctional routines . . . to varying degrees.” Dr. Kelderman

opined, however, that these and other behaviors can be managed, stating:

“Behavior modification strategies are helpful in reducing and accommodating

symptoms of ASD”; and “[s]elf-control in young children with ASD can be

increased by gradually exposing the child to progressive delays, when given the

choice to engage in an intervening activity during that delay” (internal citations

omitted).

      Dr. Kelderman explained that “[i]ntroducing alternative behaviors (a

technical term for distraction technique) is helpful not only for individuals with

disabilities, but their typically developing peers.” For example, “providing a card

game, movie, or video game to watch on a smart phone or iPad helps distract

individuals and helps keep people occupied.”

      Dr. Kelderman testified that an inability to wait for long periods of time or

understand the concept of the passage of time is “not part of the diagnostic criteria”

for ASD, is not a central component of ASD, is not a frequently occurring

symptom of ASD, and is not a common problem of ASD. Dr. Kelderman stated




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that there is no body of research outlining the inability of people with autism to

(1) “browse” or to (2) “impulsively enjoy substitute experiences.”

      However, Dr. Kelderman acknowledged that individuals with autism can

have more difficulty with waiting than do people without autism, “because it is

anxiety-provoking.” Dr. Kelderman explained that this anxiety “manifests

particularly in social situations, lots of commotion, loud environments, novel

environments where they’re not sure what’s going to happen next. These types of

things—many individuals with ASD are more prone to experience anxiety in these

events.”

      As to the Disney experience, Dr. Kelderman’s report pointed to Disney’s

Guide, which advised that “[p]arents are strongly encouraged to prepare ahead of

time” for their visits. Dr. Kelderman opined that the families’ “expectation that

any child with ASD should have immediate, unfettered access to the rides and

attractions of their choice at Walt Disney World is not a requirement of the

disability; rather, it is a preference or expectation that children with ASD and their

families have when visiting the parks.”

      Dr. Kelderman observed that “[w]aiting is an inherent, unavoidable aspect of

our culture and it is part of the daily life of children with and without ASD.”

Dr. Kelderman opined that “children with ASD are not incapable of waiting or




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unable to delay gratification,” and that a preference to visit attractions in a

particular order “is neither a requirement nor an inherent characteristic of ASD.”

      Dr. Kelderman explained her opinion as follows: (1) that “[b]y eliminating

the wait time in some instances and decreasing it in others, individuals with ASD

spend minimal amounts of time standing in a line under DAS”; and (2) that “[a]s a

result, providing a virtual wait allows individuals with disabilities more access to

park experiences, as it frees up hours of time that would otherwise be spent

standing in line.” Dr. Kelderman concluded that, given the accommodations under

the DAS Card, which are available to individuals with autism, “providing repeated,

near-immediate entry to rides and attractions . . . is not necessary to afford access

to Disney’s theme parks.”

B.    Expert Dr. Jack Spector

      Disney’s second expert, Dr. Spector, was retained to review and opine on the

expert report of plaintiffs’ expert, Dr. James. Dr. Spector disagreed with Dr.

James’s opinion. Dr. Spector noted that “[c]hildren, developmentally disabled or

not, typically do not handle delays and waits” as well as adults do, and “may have

little experience with having to wait in line as much as is required on a typical day

at a Disney theme park.”

      Dr. Spector opined that the inherent challenges of taking any child to a

Disney theme park make it difficult to attribute any particular negative experience



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to autism. Dr. Spector explained: “While there may be times when a particular

child’s particular problem behaviors and idiosyncrasies may impact their theme

park experience,” there is no evidence presented that children with ASD as a

group: (1) manifest “a complete inability to delay or defer gratification”; (2) “are

incapable of waiting in lines”; and (3) “require repeated turns on the same ride or

group of rides in particular sequence.” Dr. Spector opined that parents of children

with autism are capable of “utilizing the same behavioral tactics, plans, and

preparations as do every other parent anticipating a visit to a Disney theme park.”

      In Dr. Spector’s opinion, Dr. James’s “flawed causation analysis fail[ed] to

address any of a number of different causes”—including the particular child’s

expectations, skills, adaptability, health, fatigue, and resilience on a given day—

that could contribute to a behavioral “meltdown” at a Disney theme park.

      Having reviewed the evidence, we outline the procedural history that led to

the summary judgment motions.

                         V.    PROCEDURAL HISTORY

      These 30 lawsuits on appeal began as 44 separate lawsuits in the district

court. Some of the 44 lawsuits were filed originally in the U.S. District Court for

the Central District of California, and were transferred to the district court in

Florida. Other lawsuits were filed originally in the district court in Florida.




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Plaintiff A.L.’s action was commenced in April 2014, approximately 6 months

before the other 43 actions.

      In all 44 lawsuits, the complaint contained one count under the ADA for

each plaintiff, asserting that (1) they suffered from autism and/or cognitive

disabilities, and (2) Disney’s DAS Card violated the ADA because it did not allow

plaintiffs to go on rides without waiting and in the order they wanted. Plaintiffs

sought injunctions requiring Disney to modify the DAS Card to provide additional

accommodations.

      Discovery concluded in the A.L. action first, and Disney moved for

summary judgment. In April 2016, the district court granted summary judgment

for Disney in the A.L. case. A.L. appealed.

      The other 43 cases proceeded several months behind the A.L. case. During

the litigation, 6 of the plaintiff families voluntarily dismissed their claims, leaving

37 separate lawsuits. After Disney won summary judgment in the A.L. case,

Disney moved for summary judgment in each of the other cases. In

September 2016, the district court granted summary judgment for Disney in the 37

remaining cases.

      The district court entered substantially the same summary judgment order in

each case. The district court found that plaintiffs’ sole ADA claim arose under

§ 12182(b)(2)(A)(ii) of Title III, and involved Disney’s alleged failure to make



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necessary and reasonable modifications to its procedures to accommodate

plaintiffs’ disabilities. The district court determined that there were no issues of

material fact and that plaintiffs had not made the required showing that their

requested modifications were “necessary” to afford them “equal access” to the

benefits of a Disney theme park.

       The district court concluded that plaintiffs’ requested additional

modifications were unnecessary for three main reasons: (1) Disney provided

plaintiffs an opportunity to gain a like benefit from its parks that is enjoyed by

nondisabled individuals; (2) plaintiffs can all wait in a car or a plane to get to

Disney’s parks, and therefore plaintiffs can wait virtually with a DAS Card to

access rides at scheduled times; and (3) DAS is an existing means to equal access.

In those cases where the issue was contested, the district court also concluded that

plaintiffs “can deviate from [their] preordained route[s].” 10

       Because plaintiff A.L. appealed first, his appeal was briefed separately.

Twenty-nine of the other 37 families appealed. Those 29 appeals were

consolidated for briefing in this Court.




       10
          While the district court also concluded that plaintiffs lack standing, Disney now agrees
that plaintiffs have standing, and independently we agree too. See White’s Place, Inc. v. Glover,
222 F.3d 1327, 1328 (11th Cir. 2000) (“We cannot proceed without determining that standing
exists, even if both parties concede jurisdiction.”).


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                         VI.    STANDARD OF REVIEW

        We review a district court’s grant of summary judgment de novo. Hegel v.

First Liberty Ins. Corp., 778 F.3d 1214, 1219 (11th Cir. 2015). A district court

properly grants summary judgment when there is no genuine dispute as to any

material fact and the moving party is entitled to judgment as a matter of law. Id.;

Fed. R. Civ. P. 56(a). The court draws all inferences and reviews all evidence in

the light most favorable to the nonmoving party. Hamilton v. Southland Christian

Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012). The court does not weigh

conflicting evidence or determine the credibility of witnesses. Jones v. UPS

Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012); Skop v. City of Atlanta,

485 F.3d 1130, 1140 (11th Cir. 2007).

        A nonmoving party seeking to establish that there is a dispute of fact must

set forth specific facts showing that there is a genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986) (citing Fed.

R. Civ. P. 56(e)). The nonmoving party may not rest upon the mere allegations or

denials of his pleading. Id. Upon discovering a genuine material dispute, the court

must deny summary judgment and proceed to trial on that issue. Jones, 683 F.3d at

1292.




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                                VII. DISCUSSION

A.    Title III of the ADA

      In 1990, the ADA was enacted “to remedy widespread discrimination

against disabled individuals” and to “provide clear, strong, consistent, enforceable

standards” addressing that discrimination. 42 U.S.C. § 12101(b)(2); PGA Tour,

Inc. v. Martin, 532 U.S. 661, 674, 121 S. Ct. 1879, 1889 (2001). The ADA covers

three main types of discrimination, each of which is addressed in one of the

statute’s three main subchapters: Title I prohibits discrimination in private

employment; Title II prohibits discrimination by public entities (state or local

governments); and Title III prohibits discrimination by a “place of public

accommodation,” which is a private entity that offers commercial services to the

public. 42 U.S.C. §§ 12112(a), 12132, 12182(a); see Gathright-Dietrich v. Atlanta

Landmarks, Inc., 452 F.3d 1269, 1272 (11th Cir. 2006). Under Title III,

amusement parks are defined as “public accommodations.” 42 U.S.C.

§ 12181(7)(I). Disney’s theme parks fall within the ambit of Title III.

      Title III itself contains three parts: (1) a “General rule” in § 12182(a); (2) a

list of “General prohibitions” in § 12182(b)(1); and (3) a list of “Specific

prohibitions” in § 12182(b)(2). 42 U.S.C. § 12182. The “General rule” in

§ 12182(a) provides that “[n]o individual shall be discriminated against on the

basis of disability in the full and equal enjoyment of the goods, services, facilities,



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privileges, advantages, or accommodations of any place of public

accommodation.” 42 U.S.C. § 12182(a). As discussed later, the “General

prohibitions” in § 12182(b)(1) describe ways in which discrimination may occur,

and the “Specific prohibitions” in § 12182(b)(2) provide examples of actions or

omissions that may result in discrimination. Id. § 12182(b).

      Title III provides for only injunctive relief. See 42 U.S.C. § 12188(a)

(stating “[t]he remedies and procedures set forth in section 2000a-3(a) of this title”

are the remedies available to a person who is subjected to Title III discrimination);

id. § 2000a-3(a) (providing for “a civil action for preventive relief, including an

application for a permanent or temporary injunction, restraining order, or other

order”). Because only injunctive relief is available, a plaintiff is not entitled to a

jury trial on Title III claims. See City of Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 719, 119 S. Ct. 1624, 1643 (1999).

B.    Definition of Disability

      The first element of a Title III claim is that the plaintiff must have a

disability. The statutory definition of “disability” is provided before the several

Titles and applies to the ADA as a whole. 42 U.S.C. § 12102. Under the ADA, a

person has a “disability” if he (A) has “a physical or mental impairment that

substantially limits one or more major life activities,” (B) has “a record of such an

impairment,” or (C) is “regarded as having such an impairment.” 42 U.S.C.



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§ 12102(1). The statute provides a non-exhaustive list of “major life activities”

that includes “caring for oneself, performing manual tasks, seeing, hearing, eating,

sleeping, walking, standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and working.” 42 U.S.C.

§ 12102(2)(A).

      It is undisputed that each plaintiff suffers from severe autism and/or severe

cognitive impairments, is significantly limited in numerous major life activities,

and qualifies as an individual with a disability within the meaning of Title III of the

ADA, 42 U.S.C. § 12182(a)–(b). The quarrel here is whether Disney, through its

DAS program, provides its disabled plaintiff guests with an equal benefit and a like

experience to that of its nondisabled guests.

C.    Blanket Policy

      As a threshold issue, plaintiffs claim Disney’s DAS program is an

impermissible “blanket” or “one size fits all” policy for all disabled persons with

autism and/or cognitive impairments. Plaintiffs argue that Disney’s giving a DAS

Card to such disabled guests violates the ADA because Disney is not making the

required individualized assessment. Plaintiffs contend that Disney must undertake

an individualized inquiry to determine the specifics of each guest’s disability and

to implement modifications tailored to each plaintiff’s needs.




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      The autism spectrum is broad and has a wide array of diagnostic traits,

behaviors, and challenges. The effects of autism vary from person to person. In

turn, the benefits of a modification that are “obtainable by children at one end of

the [autism] spectrum will differ dramatically from those obtainable by children at

the other end, with infinite variations in between.” Endrew F. ex rel. Joseph F.,

581 U.S. at ___, 137 S. Ct. at 999 (discussing the need for an individualized

educational program for an autistic child).

      But this case is unique in two ways. First, Disney has not contested that all

plaintiffs have severe autism and/or cognitive impairments. Rather, Disney claims

its DAS Card is a full and complete accommodation for cognitively disabled

guests, no matter how severe or mild their conditions. If Disney’s DAS program

accommodates the needs of the most severely impaired child on the autism

spectrum, then Disney claims that its DAS program necessarily accommodates the

needs of the less impaired autistic child.

      Second, based on annual figures, Disney has about 55,000 visitors a day at

Magic Kingdom and a minimum of 26,000 visitors a day at other parks.11 Given

this volume of guests, Disney has chosen to accept each guest’s verbal

representations as to his disability without requiring any proof and issues him a

DAS Card, no matter how slight or severe the autism or cognitive disability.

      11
        Themed Entm’t Ass’n, Theme Index and Museum Index 2017: Global Attractions
Attendance Report 10 (2018).


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       Under the factual circumstances of this case, we conclude that Disney’s

generalized issuance of DAS Cards, in and of itself, does not violate the ADA.

This is not a case where a plaintiff guest has been denied accommodations across

the board. This is a case where a public place has many thousands of guests each

day and provides an identifiable and quantifiable accommodation based on its

assessment of its most severely disabled guests. If an accommodation actually

provides all necessary modifications for a severe disability across the board, it does

not violate the ADA. The critical inquiry here is whether Disney’s DAS program

adequately accommodates the most severely disabled guests and provides them an

equal benefit and a like experience to that of nondisabled guests.

       That an across-the-board modification, where proven necessary, does not

violate the ADA is illustrated by the fact that plaintiffs actually request a pass

system with a uniform ingredient: a guaranteed maximum wait time of 10 to 15

minutes for all rides for all cognitively disabled plaintiffs at all times at all parks.

Plaintiffs request this standardized pass to create a “predictable experience” for

autistic children. 12

       No case cited by plaintiffs stands for the proposition that the DAS Card is

per se impermissible simply because it is a uniformly-applied disability program.


       12
         Plaintiffs’ request for a standardized pass is consistent with other blanket policies—
such as wheelchair ramps and video captioning devices—that offer a single, complete
accommodation for everyone regardless of how mild or severe the disability.


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Whether a guest’s disability is mild or severe does not make the DAS Card illegal

under the ADA. See Ault v. Walt Disney World Co., 692 F.3d 1212, 1216 (11th

Cir. 2012) (upholding a class action settlement between mobility-disabled

plaintiffs and Disney that permits a ban on two-wheeled Segways as a safety risk

and provides Disney will develop a four-wheeled, electric, stand-up vehicle for

class members who are unable to use a mobility device that requires sitting).

      It is also noteworthy that Disney’s Guest Relations staff interact with parents

of individual disabled guests when they arrive to obtain a DAS Card and other

services. Guest Relations staff discuss additional accommodations, such as Re-ad

Passes, with parents who wish to discuss their autistic child’s unique needs and are

concerned the DAS Card will not meet those needs. While not every plaintiff

received Re-ad Passes, that issue goes to whether the ADA requires more

accommodations than Disney currently provides and does not diminish the fact that

Guest Relations staff will discuss an individual’s needs and consider whether to

provide additional accommodations.

      At bottom, Disney’s issuing a DAS Card to all cognitively disabled guests is

not per se impermissible under Title III of the ADA. We now examine plaintiffs’

primary discrimination claims.




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D.    Claims Based on § 12182(b)(2)(A)(ii)

      As the district court correctly concluded, plaintiffs’ discrimination claims

are based on § 12182(b)(2)(A)(ii). Because this Court has not previously

addressed a claim under § 12182(b)(2)(A)(ii), we review § 12182(b) to place that

subsection in context.

      Section § 12182(b)(1) contains “General prohibitions” against

discrimination, including the “denial of the opportunity” for a disabled person “to

participate in or benefit” from services or facilities. 42 U.S.C. § 12182(b)(1)(A)(i).

Another “General prohibition” provides that it is discriminatory to afford a

disabled person “the opportunity to participate in or benefit from” services or

facilities “that is not equal to that afforded to other individuals.” Id.

§ 12182(b)(1)(A)(ii).

      Along with these general principles, § 12182(b)(2) provides for “Specific

prohibitions,” which are examples of actions or omissions that constitute such

discrimination. One example is § 12182(b)(2)(A)(ii), which provides that

discrimination includes a private entity’s failure to make “reasonable

modifications” to procedures that are “necessary” to afford the services and

facilities of the private entity to the disabled, as follows:

             [Discrimination includes] a failure to make reasonable
             modifications in policies, practices, or procedures, when
             such modifications are necessary to afford such goods,
             services,   facilities,   privileges,    advantages,   or

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             accommodations to individuals with disabilities, unless
             the entity can demonstrate that making such
             modifications would fundamentally alter the nature of
             such goods, services, facilities, privileges, advantages, or
             accommodations[.]

42 U.S.C. § 12182(b)(2)(A)(ii) (emphasis added). The plaintiff bears the burden of

proving not only that he is disabled but also that his requested modification is both

“reasonable” and “necessary.” Id.; see Gathright-Dietrich, 452 F.3d at 1273–74

(discussing plaintiff’s initial burden in a Title III case involving architectural

barriers); Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052, 1058 (5th

Cir. 1997) (deriving burden in Title III reasonable modification case from Title I

employment case).

      No ADA violation occurs, however, when the private entity demonstrates

that the requested modifications would “fundamentally alter the nature of” its

services and facilities. 42 U.S.C. § 12182(b)(2)(A)(ii); Martin, 532 U.S. at 682,

121 S. Ct. at 1893 (quoting § 12182(b)(2)(A)(ii)). The defendant private entity

bears the burden of proof on the fundamental alteration inquiry. See Gathright-

Dietrich, 452 F.3d at 1273–75 (adopting the burden shifting framework for claims

under § 12182(b)(2)(A)(iv), which requires reasonable modification unless the

defendant shows it is not “readily achievable”).

      The Supreme Court has explained that the statutory text of

§ 12182(b)(2)(A)(ii) “contemplates three inquiries” for determining whether a



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requested modification to a public accommodation’s procedures is required.

Martin, 532 U.S. at 683 n.38, 121 S. Ct. at 1893 n.38. The three inquiries are:

(1) whether the requested modification is “reasonable”; (2) whether the requested

modification is “necessary” for the disabled individual; and (3) whether the

requested modification would “fundamentally alter the nature” of the public

accommodation. Id. The Supreme Court instructed that “[w]hether one question

should be decided before the others likely will vary from case to case, for in logic

there seems to be no necessary priority among the three.” Id. In some cases, “the

specifics of the claimed disability might be examined within the context of what is

a reasonable or necessary modification.” Id.

      Here, the district court ruled that the DAS program already provided

plaintiffs with full and equal enjoyment of Disney’s theme parks and that

plaintiffs’ requested additional modifications were not “necessary” under the

ADA. The district court did not rule on the reasonableness or fundamental

alteration inquiries. We therefore focus on the case law about “necessary”

modifications and then analyze plaintiffs’ impairments within that context.

E.    Necessary Modifications

      In PGA Tour, Inc. v. Martin, 532 U.S. 661, 682, 121 S. Ct. 1879, 1893

(2001), the Supreme Court touched briefly in dicta on the differences between

reasonable and necessary in § 12182(b)(2)(A)(ii), although the Court ruled solely



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on the “fundamental alteration” inquiry. In Martin, the plaintiff, a mobility-

disabled golfer, requested a waiver of the PGA Tour’s walking rule and claimed

that use of a golf cart was reasonable and necessary. 13 Id. at 667–69, 121 S. Ct. at

1885–86. After reviewing the extensive evidence at the bench trial and the district

court’s fact findings, the Supreme Court explained why allowing the plaintiff “to

use a golf cart would not fundamentally alter the nature of [the PGA’s]

tournaments.” Id. at 681, 683–86, 690, 121 S. Ct. at 1893–95, 1897. The PGA

Tour did not dispute using a golf cart was reasonable and necessary for the plaintiff

in Martin. Id. at 682, 121 S. Ct. at 1893.

       Nevertheless, how the Supreme Court distinguished these terms is

informative. The Supreme Court noted that use of a golf cart was a “reasonable

modification” that was “necessary” if the plaintiff was to play in the PGA’s

tournaments. Id. at 682, 121 S. Ct. at 1893. The Supreme Court explained that

“Martin’s claim thus differs from one that might be asserted by players with less

serious afflictions that make walking the course uncomfortable or difficult, but not

beyond their capacity.” Id. The Supreme Court instructed: “In such cases, an

accommodation might be reasonable but not necessary.” Id.


       13
          The plaintiff in Martin could not walk the entire 18-hole course or compete without a
golf cart. Id. at 668–70, 121 S. Ct. at 1885–86. Even with a cart, the plaintiff had to get in and
out of the cart, walk over a mile during an 18-hole round, and suffered fatigue “undeniably
greater” than that endured by able-bodied competitors from walking even that limited amount.
Id. at 671–72, 121 S. Ct. at 1887. It was undisputed that the plaintiff was disabled and that the
cart did not put him at a competitive advantage. Id. at 670–74, 121 S. Ct. at 1886–87.


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      Because an accommodation may be reasonable, but still not necessary, it is

easy to see why the district court in this case concentrated on whether plaintiffs’

requested modification was necessary. Yet hard questions are presented by the

legal contours and factual complexity of what is “necessary” for these severely

disabled plaintiffs.

      As to the legal standard, two circuit courts after Martin have addressed how

to define “necessary” in § 12182(b)(2)(A)(ii). See Argenyi v. Creighton Univ.,

703 F.3d 441 (8th Cir. 2013) (applying §§ 12182(b)(2)(A)(ii)–(iii)); Baughman v.

Walt Disney World Co., 685 F.3d 1131 (9th Cir. 2012) (applying

§ 12182(b)(2)(A)(ii)). Both decisions used “a like experience” standard in

evaluating whether the plaintiff’s requested modification was “necessary” to

provide an equal benefit and full and equal enjoyment. Argenyi, 703 F.3d at 448–

51; Baughman, 685 F.3d at 1134–35.

      The Ninth Circuit in Baughman explained that “[p]ublic accommodations

must start by considering how their facilities are used by nondisabled guests and

then take reasonable steps to provide disabled guests with a like experience.” 685

F.3d at 1135. Public accommodations have “to provide disabled patrons an

experience comparable to that of able-bodied patrons.” Id. “Facilities are not

required to make any and all possible accommodations that would provide full and

equal access to disabled patrons,” but rather “need only make accommodations that



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are reasonable.” Id. Facilities must “help disabled guests have an experience more

akin to that of nondisabled guests.” 14 Id.

       Subsequently, the Eighth Circuit in Argenyi agreed with the Ninth Circuit’s

Baughman decision that to comply with Title III, public accommodations should

(1) “start by considering how their facilities are used by nondisabled guests,” and

(2) “then take reasonable steps to provide disabled guests with a like experience.”

Argenyi, 703 F.3d at 449 (quoting Baughman, 685 F.3d at 1135). In Argenyi, a

hearing-impaired medical student sued under both Title III and the Rehabilitation

Act, requesting certain auxiliary aids and services. Id. at 443. The district court

granted summary judgment for the defendant university, concluding that the

plaintiff “had not shown the accommodations he requested were ‘necessary’ within

the meaning of the statutes” and that the university had provided “effective

communication” as required by both laws. Id. at 445–46.

       Because it had “never determined the definition of ‘necessary’ under

Title III,” the Eighth Circuit consulted and applied the standard under the

Rehabilitation Act. Id. at 447–48. Ultimately, the Eighth Circuit held that Title

III, like Section 504 of the Rehabilitation Act, requires a public accommodation to

       14
         Baughman involved a plaintiff who suffered from muscular dystrophy and wished to
use a Segway at Disneyland. 685 F.3d at 1132. Although reversing the district court’s grant of
summary judgment for Disney, the Ninth Circuit stressed that “[w]e do not hold that Disney
must permit Segways at its theme parks” and that Disney “might be able to exclude them if it can
prove that Segways can’t be operated safely in its parks.” Id. at 1137. But any safety regulation
Disney imposes “must be based on actual risks and not on mere speculation, stereotypes, or
generalizations about individuals with disabilities.” Id. (quoting 28 C.F.R. § 36.301(b)).


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provide a disabled individual with “meaningful access or an equal opportunity to

gain the same benefit as his nondisabled peers.” Id. at 449. The Eighth Circuit

pointed out that under a “meaningful access” standard, an entity’s “aids and

services ‘are not required to produce the identical result or level of achievement for

handicapped and nonhandicapped persons,’ but they nevertheless ‘must afford

handicapped persons equal opportunity to . . . gain the same benefit.’” Id. at 449

(alteration in original) (quoting Loye v. Cty. of Dakota, 625 F.3d 494, 499 (8th Cir.

2010)). The Eighth Circuit concluded that the plaintiff’s evidence created a

genuine issue of fact as to whether the defendant university had denied the plaintiff

“an equal opportunity to gain the same benefit from medical school as his

nondisabled peers by refusing to provide his requested accommodations.” Id. at

451.

       In doing so, the Eighth Circuit in Argenyi observed that our Circuit “has

similarly concluded that the ‘proper inquiry’ under the Rehabilitation Act to

determine if a hospital had provided ‘necessary’ auxiliary aids to a hearing

impaired patient was whether the proffered aids ‘gave that patient an equal

opportunity to benefit from the hospital’s treatment.’” Id. at 449 (quoting Liese v.

Indian River Cty. Hosp. Dist., 701 F.3d 334, 343 (11th Cir. 2012)). Indeed, in

Liese this Court observed that the task of determining what is “necessary” under

the Rehabilitation Act is “inherently fact-intensive” and “largely depends on



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context.” Liese, 701 F.3d at 342–43; see Argenyi, 703 F.3d at 449 (quoting Liese,

701 F.3d at 342–43).

      Although Liese was a Rehabilitation Act case, this Court recently followed

Liese in a lawsuit brought under both the ADA and the Rehabilitation Act. See

Silva v. Baptist Health S. Fla., Inc., 856 F.3d 824, 834 (11th Cir. 2017) (citing

§§ 12182(b)(1)(A)(i)-(ii), (b)(2)(A)(iii)). We observed in Silva that the ADA and

the Rehabilitation Act both focus on equal opportunity to participate in or benefit

from the defendant’s goods and services. Id. Reversing the district court’s grant

of summary judgment for the defendant, this Court concluded that whether the

requested auxiliary aids for a hearing-impaired plaintiff were necessary was an

“inherently fact-intensive” inquiry. Id. at 836 (quoting Liese, 701 F.3d at 342); see

also Crane v. Lifemark Hosp., Inc., ___ F.3d ___, ___, No. 16-17061, 2018 WL

3654427, at *3 (11th Cir. Aug. 3, 2018) (quoting Silva, 856 F.3d at 835–36)

(noting that the “standard inquiry” of necessity is the same under the ADA and

Rehabilitation Act).

      The Silva Court added that “[n]onetheless, this does not mean that every

request for an auxiliary aid that is not granted precludes summary judgment or

creates liability.” Silva, 856 F.3d at 836 (quoting Liese, 701 F.3d at 343). With

that in mind, this Court proceeded “to evaluate the record evidence pertaining to

whether there are disputed issues of material fact regarding Plaintiffs’ claimed



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impairments in their ability to exchange medically relevant information with

Defendants’ hospital staff.” Id. Reversing the grant of summary judgment, we

concluded that plaintiffs presented sufficient evidence to create a fact issue on

whether they were denied the auxiliary aids “necessary to ensure that a deaf patient

was not impaired in exchanging medically relevant information with hospital

staff,” with a “level of communication . . . that is substantially equal to that

afforded to non-disabled patients.” Id. at 831, 835.

      With this background, we examine the district court’s summary-judgment

conclusion that, as a matter of law, plaintiffs did not show that modifications

beyond the DAS Card were “necessary” under § 12182(b)(2)(A)(ii).

F.    Analysis of “Necessary”

      We first agree with our sister circuits that public accommodations must start

by considering how their facilities are used by nondisabled guests and then must

take reasonable steps to provide disabled guests with a “like experience.” Argenyi,

703 F.3d at 449; Baughman, 685 F.3d at 1135. In its analysis of necessary

modifications, the district court correctly considered two factors: (1) how

nondisabled guests use Disney’s facilities; and (2) whether its DAS Card provides

disabled guests with a like experience and equal enjoyment.

      As to the first factor, we have described above in great detail how

nondisabled guests access and use rides in Disney’s parks. We conclude there is



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no material fact issue as to that process or part of the district court’s analysis. All

nondisabled guests must plan ahead in order to reserve FastPass+ times and can

obtain only three FastPass+ reservations in advance. Nondisabled guests without a

DAS Card will inevitably have to wait to experience other rides at Disney’s parks.

For the most popular rides, nondisabled guests often must endure wait times of

over an hour and must stand all together in a physical line.

      As to the second factor, we must evaluate if the DAS program afforded the

severely disabled plaintiffs a like experience and equal enjoyment. “Meaningful

access” gives plaintiffs the opportunity to have something akin to or similar to the

experience other people enjoy at Disney’s park. See Argenyi, 703 F.3d at 449.

Because nondisabled guests must plan as well, Disney’s asking parents of disabled

guests to do so is reasonable and not illegal. Further, facilities are not required to

make the preferred accommodation of plaintiffs’ choice. See Stewart v. Happy

Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285–86 (11th Cir. 1997).

Facilities need make only reasonable accommodations that are “necessary.” 42

U.S.C. § 12182(b)(2)(A)(ii). It is not enough to show that the DAS Card does not

eliminate all discomfort or difficulty.

      Here, as shown above, disabled guests can obtain not only three advance

FastPass+ reservations but also a DAS Card “return time” for a fourth ride at Guest

Relations at the beginning of the day. Then, after each subsequent DAS Card ride,



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disabled guests can obtain one more DAS Card “return time” for a popular ride, all

without waiting in a physical line. The district court aptly observed that, compared

to nondisabled guests, disabled guests with a DAS Card can “access those same

rides in a fraction of the time” and without standing in line, which results in a

“similar, or better, experience as those not needing accommodation.” So far, so

good in the district court’s ruling.

      Although the DAS Card is a significant benefit, we conclude that factual

disputes still exist about behavioral features of plaintiffs’ impairments that make it

more difficult to evaluate whether the DAS program provides a like experience.

Plaintiffs’ evidence posits that waiting for rides in the over-stimulated environment

of a theme park, even virtually with the DAS Card, is beyond the capacity of

plaintiffs given the specific and severe nature of their disabilities. Plaintiffs’ expert

and lay evidence indicates that specific neurologically-based manifestations of

plaintiffs’ disabilities are: (1) that they have no concept of time, cannot defer

gratification, and cannot wait for rides; and (2) that they must adhere to routine,

visit the same ride repeatedly, and visit rides in the same order as in prior park

visits. Plaintiffs’ evidence indicates that prompt and pre-set access to rides is

“necessary” to prevent meltdowns and afford them an equal experience at and

enjoyment of Disney’s parks. Plaintiffs explain that the DAS Card addresses only

where they must wait, not that they must wait.



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      Each parent filed a declaration detailing his or her child’s disabilities and

special needs, including the inability to endure temporal waits and disruptions of

routine. According to plaintiffs’ evidence, their children with severe autism cannot

comprehend the concept of time, which is the fundamental aspect of understanding

that waiting in the present will produce something positive in the future. The

claimed disability is waiting at all. Disney’s DAS program accommodates the

need to avoid physical lines, but not the need to avoid waits. It addresses the

geographic burden but not the temporal one. Plaintiffs still must wait.

      We recognize the district court relied on the fact that plaintiffs have waited

in cars or airplanes for many hours until they get to their travel destinations.

Disney’s evidence does show that all plaintiffs have taken trips by car or plane to

reach theme parks, cruise ships, or other destinations, and that their parents have

managed their autistic children waiting in a car or plane during significant travel

time. Disney submits the gratification from these trips—reaching the desired

destination—was delayed significantly and not instant. Disney argues that living

in society requires waiting in cars, on planes, and in a myriad of other places, such

as schools, medical offices, and restaurants. That view is supported by Disney’s

evidence.

      Nonetheless, plaintiffs presented conflicting evidence as to this behavioral

aspect of their disabilities. The testimony of plaintiffs’ parents is that all



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environments are not identical, and managing a severely autistic child inside a car

is materially different than in a chaotic theme park. According to plaintiffs’

evidence, tolerance for travel by car or plane is not equivalent to tolerance for wait

time in an amusement park. While plaintiffs’ abilities to wait in a car or plane is

relevant evidence, it is not dispositive as to whether, once inside a theme park with

strong stimuli of all kinds, plaintiffs can wait virtually for their pre-set, routine

rides. The DAS Card does allow disabled guests to avoid the crowded and

constrained conditions that exist when standing in line for a ride. But Disney

theme parks are high-commotion environments and plaintiffs must virtually wait

therein.

      In response, Disney’s experts submit that, while plaintiffs wait virtually for a

popular ride and their guaranteed “return time,” they (even without comprehending

any concept of time) are not idle and can enjoy other rides, parades, concerts,

characters, restaurants, stores, and attractions, all of which have no wait. The

record, however, creates factual issues about whether plaintiffs are able to

transition to other activities without meltdowns or other behavioral challenges

when they cannot access rides in their already-fixed routine orders or cannot access

the same ride repeatedly.

      In the light most favorable to plaintiffs, we conclude that genuine issues of

material fact exist about these two aspects of plaintiffs’ disabilities that preclude



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summary judgment on the necessary-modification inquiry. To determine what is

“necessary” requires multiple fact findings regarding these two disputed behavioral

characteristics of plaintiffs’ disabilities. Until those fact findings are made in a

bench trial, it cannot be determined what is or is not necessary under the ADA.

The DAS Card, as good as it may be, still fails to address plaintiffs’ alleged

impairments of the inability to wait virtually for rides and the need to adhere to a

routine order of rides or repeat rides. Because factual disputes exist as to those

impairments, we must reverse the grant of summary judgment in favor of Disney

on the necessary-modification inquiry.

G.    Reasonableness and Fundamental Alteration

      We recognize that Disney requests that we affirm on the alternative grounds

that plaintiffs’ requested modification—unlimited near-immediate access to all

rides—is not reasonable and would fundamentally alter the park experience.

Plaintiffs point out that the district court did not address those issues and should do

so first. Undisputedly, this Court has the power to affirm a grant of summary

judgment on any basis supported by the record. Kolodziej v. Mason, 774 F.3d 736,

740 (11th Cir. 2014).

      Those two alternative grounds, however, involve complicated issues too.

Here is but one of the parties’ debates about the reasonableness and fundamental

alteration inquiries that Disney asks us to resolve for the first time on appeal.



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      The parties contest the effect of plaintiffs’ requested relief, which has

evolved to this “single fix”: an injunction requiring that Disney guarantee plaintiffs

a maximum wait of 10 to 15 minutes for all rides. More specifically, plaintiffs ask

this Court to implement this fix by ordering Disney to provide either: (1) a card

offering automatic access to the FastPass lines for all rides at all times; or

(2) between 6 and 10 guaranteed Re-ad Passes for the disabled guest and each

person in the group. At oral argument, plaintiffs’ counsel expressed a preference

for unlimited access to the FastPass lines “for everyone’s administrative burden”

and because any number of Re-ad Passes would necessarily be limited.

      In response, Disney argues that even if more than the DAS program is

necessary, plaintiffs’ proposed fix is unreasonable because it is the functional

equivalent of Disney’s previous system, which Disney avers was discontinued due

to fraud and abuse. Prior to starting the DAS program in 2013, Disney offered a

Guest Assistance Card (the “GAC”), which allowed disabled guests access to the

FastPass line at every ride. Using a GAC, a disabled guest (and his group) could

ride all rides whenever and as many times as he wanted, in any order, with very

little waiting. As to the alleged abuse, Disney presented evidence that nondisabled

guests would hire a “guide” who possessed a GAC, who then joined the guests’

group and gave them the GAC benefit of FastPass access at all attractions. One

Disney study showed that in 2013, approximately 3% of guests at Disney World



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were issued GACs, but GAC-holding guests accounted for 30% of riders on one

popular ride. According to Disney, this fundamentally altered the park experience

because GAC-holding guests rode a popular ride three or four times, while many

nondisabled guests experienced a two-hour line or were not able to get on the ride

at all.

          Plaintiffs vigorously dispute Disney’s abuse claims. In the district court,

plaintiffs even moved to exclude Disney’s study showing that GAC-holding guests

accounted for 30% of riders on one ride. Plaintiffs argued that Disney designed

and skewed the study to “create a hypothetical perfect storm” by showing the

effect of GAC usage on only the busiest ride and on only the busiest day. The

district court did not rule on that motion. In any event, plaintiffs argue they are not

asking for a return to the GAC system. Plaintiffs say their request is for a

modification of the DAS program, not its destruction.

          This is but one example of knotty issues that must be sorted out before a

court could decide whether plaintiffs’ requested accommodation, if proven

necessary, is reasonable, and if so, whether it would fundamentally alter the park

experience. We thus conclude that the reasonable and fundamental alteration

inquiries must be addressed by the district court in the first instance, and we leave

it to the district court how best to approach those issues on remand and whether

further record development is needed. Among other things, the district court will



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need to determine whether material issues of fact, if any, exist as to these two

inquiries. Nothing herein expresses an opinion on that question.

H.    Intentional Discrimination Cause of Action

      We now turn to the district court’s ruling that Count 1 of plaintiffs’

complaints asserted only a cause of action for failure to make reasonable and

necessary modifications under the ADA and did not contain a separate cause of

action for intentional or disparate-impact discrimination under the ADA.

      The factual allegations in each of the 30 complaints started out with 60-plus

similar paragraphs of “Facts Common to All Claims” about Disney’s theme parks

and its DAS Card. Each complaint then had separate counts which set forth the

causes of action. Every plaintiff asserted a single ADA claim as Count 1, which

charged that Disney violated “42 U.S.C. §§ 12131, et seq.” None of the other

counts cited or involved the ADA, but rather asserted claims under state law.

      Further, in every complaint, the ADA claim in Count 1 incorporated by

reference all of the “Facts Common to All Claims” and added additional factual

allegations about each plaintiff’s individual experience with the DAS Card and the

alleged failure of the DAS Card to address that particular plaintiff’s autism and/or

cognitive disabilities. As relief, the ADA claim in each Count 1 requested that the

district court enter an injunction prohibiting Disney from further discrimination

and requiring Disney “to reasonably modify its policies, practices, and procedures



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to afford Plaintiff with an opportunity to experience Disney’s goods, services,

facilities, privileges, advantages, and accommodations.”

       We agree with the district court that plaintiffs’ complaints contained a cause

of action for failure to make reasonable and necessary modifications under the

ADA but not a cause of action for intentional or disparate-impact discrimination.

On appeal, plaintiffs’ briefs primarily argue that the district court erred in its

alternative ruling by reaching the merits and holding that even if plaintiffs properly

had raised intentional or disparate-impact discrimination claims in their

complaints, they did not make out a prima facie case. Plaintiffs challenge the

district court’s merits ruling that (1) plaintiffs’ evidence did not show that a

motivating factor behind the DAS Card was to impose an adverse effect on

severely autistic individuals (the alleged element of an intentional discrimination

claim), and (2) the DAS Card applied specifically to guests with cognitive

disabilities, and was not a facially neutral policy (the alleged element of a

disparate-impact claim). Given that plaintiffs’ complaints do not contain a cause

of action for intentional or disparate-impact discrimination under the ADA, we

need not, and do not, reach the issue of whether plaintiffs’ evidence was sufficient

to survive summary judgment. 15



       15
         Disney also argues that Title III of the ADA provides only a statutory discrimination
claim for failure to make reasonable and necessary modifications, not a statutory claim for


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       Even if their complaints state no cause of action for intentional or disparate-

impact discrimination, plaintiffs stress they still wish to introduce evidence at the

bench trial relating to Disney’s discriminatory intent when it enacted the DAS

Card, in order to show that Disney never intended the DAS Card to be an adequate

accommodation for guests with autism and/or cognitive disabilities. Plaintiffs also

argue that their evidence of Disney’s intent is relevant to and supports their state

law claims alleging California Unruh Act violations and intentional torts. Of

course, nothing in this opinion addresses, or prevents plaintiffs on remand from

presenting, intent evidence at trial that is admissible under the Federal Rules of

Evidence. That issue is premature because evidentiary matters at trial are for the

district court to decide in the first instance.16




intentional or disparate-impact discrimination. Given that the complaints do not include
intentional or disparate-impact discrimination claims, we also do not decide that legal issue.
       16
          Many plaintiffs also asserted common law claims under Florida or California law, and
nine plaintiffs brought claims under California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51–
52. In a consolidated order entered in each case, the district court sua sponte dismissed
plaintiffs’ common law claims, reasoning that those claims were not sufficiently related to the
ADA claims to justify the exercise of supplemental jurisdiction. Plaintiffs’ briefs do not argue
that this was error.
        As to the nine plaintiffs with California Unruh Act claims, the district court concluded
that Unruh Act liability is coextensive with ADA liability. Because summary judgment was
granted on the ADA claims, the district court granted summary judgment on the Unruh Act
claims. On appeal, plaintiffs argue that the district court erred as to their Unruh Act claims.
Because we reverse as to the ADA claims, we reverse as to the Unruh Act claims and remand
them for consideration by the district court in the first instance. We do not address the type of
relief available under those Unruh Act claims.


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                              VIII. CONCLUSION

      For all of the above reasons, we (1) affirm the district court’s entry of

summary judgment for Disney as to plaintiffs’ claims of intentional and disparate-

impact discrimination under the ADA, (2) reverse the district court’s ruling as to

plaintiffs’ standing, (3) vacate the district court’s entry of summary judgment for

Disney as to the necessary-modification inquiry under § 12182(b)(2)(A)(ii) of the

ADA, and remand for further proceedings consistent with this opinion.

      AFFIRMED IN PART; REVERSED IN PART; VACATED AND

REMANDED IN PART.




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