Faculty Commentary

Why The Franklin Institute Can No Longer Charge Disabled Guests Twice

The Franklin Institute

My son, Michael, is a 34-year-old who has cerebral palsy. Despite his disability, he knows how to enjoy life. He’s very active in politics, he loves sports, he loves museums, and he loves going to concerts. But he can’t do any of these things by himself. While he can drive his own power wheelchair, for just about everything else – getting dressed, eating, showering, transferring from bed to wheelchair, shaving, driving in his van, going to the bathroom – he depends on somebody else to help him. He has attendants 24/7.

Because of his disability, jobs are hard to come by, and even when he finds one, it’s always part-time. He relies mostly on Supplemental Security Income and food stamps to get by. Accordingly, even more than most, financial considerations limit the number of things he can do. But he also faces an additional obstacle. When he goes to an event, he gets charged twice – once for himself and once for his attendant.

Now on the surface, this might seem reasonable. After all, the attendants are getting the same benefit from going to the event that Michael is[1] – or are they? Having suffered through more than my fair share of Dave Matthews Band concerts (Michael’s a huge fan, I’m not), it’s hard to argue that I am having as much fun as Michael is. And the same is true for Michael’s other attendants. The main reason they are with Michael is because they have to be – it’s their job, and Michael couldn’t go without them. And because attending the event is not their choice, it’s unreasonable to expect that they will pay their own way. Their wages are low enough as it is. So Michael pays for them, too. And a $20 trip to The Franklin Institute becomes a $40 one; a $30 trip to see the Phillies becomes a $60 one; and a $75 trip to see Dave Matthews becomes a bank-busting $150.

“Financial considerations limit the number of things [Michael] can do. But he also faces an additional obstacle. When he goes to an event, he gets charged twice – once for himself and once for his attendant.”

For the rest of us, if we want to make the same kind of trips, we have the option of going alone. Or we can invite friends to come along who can pay their own way. Michael does not have that luxury. So he pays twice as much. Eventually, he got tired of that. In the summer of 2013, when he tried to go to The Franklin Institute (the “Institute”), he was told he’d have to pay for both himself and his attendant to visit a special exhibit (Spy Wars) that he’d been dying to see, as well as for an IMAX movie; the only reason they didn’t charge his attendant for general admission was that Michael had a dual membership that entitled him to bring in a “friend” for free. Rather than pay up, Michael decided to bring a lawsuit against the Institute in federal court, alleging a violation of the Americans with Disabilities Act (ADA).

The ADA states: “No individual shall be discriminated against on basis of disability in the full and equal enjoyment of the goods, services [and] facilities … of any place of public accommodation.”[2] A definitional section makes it clear that “public accommodation” includes a museum.[3] And another section makes clear that “discrimination” includes “a failure to make reasonable modifications to policies, practices or procedures.”[4] If a policy is found to be discriminatory, modifications must be made unless the owner of the public accommodation can demonstrate that the modifications would place an “undue burden” on the business.

Michael’s lawyer, noted disability rights attorney Steve Gold, argued that Michael’s attendant was “functionally … no different from a wheelchair or service animal,”[5] because like the wheelchair or service animal, the attendant also was necessary for Michael to have full access to the museum. Because museums don’t charge extra for wheelchairs and service animals, they shouldn’t be allowed to charge extra for attendants either. Federal district judge Gerald McHugh agreed. And because the Franklin Institute didn’t keep records of how many people used attendants while visiting the museum, it had no way of showing that allowing all these attendants in for free would cost it so much money that it would constitute an undue burden. In fact, Judge McHugh found that the Institute couldn’t show it would be any burden at all.

The Institute has chosen not to appeal the decision, so Michael is now free to attend the museum for the same price as anyone else. The key question is whether this case can be leveraged to convince other public accommodations in the area that they should also change their admissions policies. Unfortunately, because this is only a trial court opinion, it has no binding effect on any other court, even other trial courts in the Eastern District of Pennsylvania, where Judge McHugh sits. However, it is also a case of first impression, meaning it is the first case anywhere in the nation to address this issue of statutory interpretation. As such, it is the only place people can turn to for judicial guidance as to the meaning of the statute as it applies to charging for attendants. And because it is a well-reasoned opinion, it may have some influence on how other parties view the ADA. Michael is now exploring whether other establishments in the Philadelphia area will be willing to make the same kinds of accommodations for attendants that the Institute is now providing. Only time will tell. But for now, he is very happy with his legal victory.

[1] Interestingly enough, the Department of Justice saw it this way. When I called their ADA hotline, they gave the following example. When an attendant accompanies a person with a disability to a swim club, if the attendant just dresses the person but doesn’t get into the water, he doesn’t have to pay. But if does get into the water, even if it’s to keep the person with a disability from drowning, then he has to pay. He is enjoying the benefit of the pool.

[2] 42 USC §12182(a).

[3] 42 USC §12182(a).

[4] 42 USC §12182(b)(2)(ii).

[5] Obviously, attendants are different from wheelchairs and service animals in important ways. For one thing, attendants may actually enjoy being at an event, even if they didn’t choose to attend it in the first place. But even if the attendant has fun, he/she still shouldn’t be charged. The focus should remain on the person with the disability – that’s who the ADA is intended to protect. Even if the attendant likes being at an event, he/she is still not going to pay for the ticket, which means the person with the disability is going to be charged twice as much as a non-disabled person.

Questions about this post? Drop us a line at lawcomm@temple.edu.

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