June 2021 - Parks & Recreation - 30

L AW R EV I EW

rialize the agreement " with respect
to the use of the boathouse and the
tourism development council fund
application and requirements. "
Further, in the opinion of the
court, the pretrial record did not
establish that the City had contractually delegated its responsibility
for the operation of services, activities and programs, which the
City would have otherwise been
responsible for itself. Instead, the
federal district court found " the record only establishes that the City
contractually agreed to provide the
venue for LCRA to host its rowing events. " As a result, the court
rejected the claim that the afterschool rowing program was a service provided by the City.

City as Landlord
Perez also had claimed the City
was liable for discrimination under
Title II of the ADA because " the
City is the owner and landlord of
the boathouse. " As characterized by
the court, the issue was, therefore,
whether " the City is liable merely
because of its status as the owner
of the boathouse. " According to the
court: " A landlord incurs liability
only if the landlord implements a
discriminatory policy, practice, or
procedure. " In so doing, however,
the court acknowledged: " the ADA
does not require a landlord to ensure that a tenant (or group of tenants) includes every neighbor at an
event. " In this case, the court found
" the City's only connection to the
after-school program at issue is the
City's ownership of the boathouse. "
Under Title II of the ADA, Perez
had claimed the City has an independent liability as the owner or
lessor of the boathouse. The federal district court acknowledged that
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federal courts have held " a public
entity is subject to Title II liability because it is considered to be a
landlord. " The court, however, noted these claims of discrimination
under the ADA were based upon
" the lack of accessibility to facilities, " such as a theater or sports
arena owned by a public entity, for
disabled individuals.
In this particular case, the city
manager had testified that " the
City essentially functions as a landlord and does not control what
LCRA does inside the boathouse. "
Moreover, the federal district court
noted: " The annual regatta, summer camps, and after-school programs are programs provided by
LCRA, not the City. " Further, the
city manager had testified " the
purpose of the boathouse was for
the City to rent it. " In addition, the
city manager indicated " any individuals who participate in any of
the activities of LCRA do not sign
a waiver with the City. "
Under these circumstances, the
federal district court found Perez
had not claimed that " F.V. was
excluded or denied access to the
boathouse " by the City. Instead,
Perez claimed " F.V.'s ability to participate as a competitor in LCRA's
after-school program " was being
denied. Even if the LCRA afterschool program was not a program offered by the City, Perez had
claimed Title II of the ADA prohibits all discrimination by a public
entity, regardless of the context.
The federal district court, however, found Perez had " not identified
any discriminatory policy, practice,
or procedure of the City. " In particular, the court noted Perez had
" not provided any evidence to suggest that F.V. was subject to any dis-

crimination by the City " in providing access to the boathouse.
The federal district court, therefore,
rejected Perez's Title II claim against
the City and granted the City's motion for summary judgment.

Individualized Support
Accommodation
In her Title III ADA claim against
LCRA, Perez claimed LCRA " intentionally failed to make reasonable modifications in its policies,
practices, and/or procedures, upon
repeated requests, as necessary to
afford Plaintiff with its goods, services, facilities, privileges, advantages, or accommodations. "
In so doing, Perez filed a motion
to exclude the opinion of LCRA's
expert, Dr. Jill Kelderman, a pediatric neuropsychologist and board
certified in clinical neuropsychology. Dr. Kelderman was retained
by LCRA to provide an overview
of the Autism Spectrum Disorder
and to opine on what type of accommodations, if any, F.V. would
require in order to participate in
LCRA's after-school program.
Dr. Kelderman opined that F.V.
had significant skill deficits that impacted his ability to independently
function successfully in a competitive after-school program and that
he required individual coaching
and instruction, which incorporated Applied Behavior Analysis
(ABA) to potentially develop adequate rowing skills.
ABA is an evidence-based intervention for Autism Spectrum
Disorder (ASD) that improves social communication and adaptive
behaviors while decreasing the severity and frequency of maladaptive behaviors.
Perez claimed Dr. Kelderman

June 2021 - Parks & Recreation

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