Appeals Court Reverses - in part - Dismissal of ADA Lawsuit over Disability Access Service

[jcb]

The Eleventh Circuit Court of Appeals in Atlanta, which hears appeals from Florida Federal District Courts, has "vacated" the Orlando federal court's dismissal of the claims alleging Disney's adoption of the Disability Access Service (DAS) violated the ADA.

The decision is 65 pages so it will take me a little time to read it. I'll update this thread when I've done so and try to explain what the ruling means. (Unlike mysteries, I always read the conclusion of a court decision first). You can read the decision here: http://media.ca11.uscourts.gov/opinions/pub/files/201612647.pdf

What I think I know so far.

• The court of appeals upheld the dismissal of all claims other claims, those arising under state law, for example. The lone exception was claims brought under California's equivalent of the ADA.
• The court of appeals holding simply addresses whether the sought for modifications were "necessary" - not whether they were reasonable or would fundamentally alter the park experience.
• The court of appeals ruling does not require Disney to reinstate the Guest Assistance Card (GAC).
• The court of appeals ruling does not hold Disney violated the ADA. Procedurally, the decision simply says there are factual issues which the lower court must address.

I should explain the last paragraph a little better. One way to get a lawsuit dismissed is by showing there are no material disputed facts. To dismiss a lawsuit for this reason, the rules require the court to presume disputed facts which favor the party opposing dismissal are true.

What facts are material depends on the legal claims. Disney persuaded the district court that there no material factual disputes and the district court did not hold a trial. The appeals decision disagrees with the district court's ruling but neither court has made any factual rulings. So, in later posts, I discuss some facts but understand that none of the facts are considered "found" or "true."

 

[jcb]

For those not familiar with the litigation, here are prior articles from the DIS:

http://blog.wdwinfo.com/2014/04/04/new-lawsuit-attacks-disneys-new-disability-access-service/
http://blog.wdwinfo.com/2014/07/13/disney-responds-to-disability-access-service-lawsuit/
http://blog.wdwinfo.com/2014/09/16/disney-opposes-inflammatory-amended-complaint-in-das-lawsuit/
http://blog.wdwinfo.com/2015/11/02/disney-asks-court-to-dismiss-autismdas-lawsuit/

 

[jcb]

Here's the first helpful paragraphs from the decision, for those not familiar with how DAS works and integrates with FastPass+ at WDW:

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 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.​

 

[jcb]

Especially considering what appears to be a pretty narrow holding, the decision is going into considerable detail about the nature of the plaintiffs' disabilities (generally, severe autism), their inability to wait much longer than 10 to 15 minutes, and the competing expert testimony about whether individuals with autism can learn to wait.

The court also described the plaintiffs' park experiences in some detail. The descriptions indicate that, while some families used FastPass+ before going to the parks, not all the families of the families did so. This could be a real problem for them later...

Interestingly, one fact I didn't know is that at least one of the plaintiffs is in physically his 20's. Legally (and medically, for all I know), that is irrelevant. I had just assumed all the plaintiffs were children. Silly me.

 

[jcb]

The court of appeals upholds Disney's decision to use DAS Cards instead of Guest Assistance Cards. This alone is a big (though not unexpected) win for Disney.

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. 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.
​

 

[jcb]

Ok, now I have to get geeky so you'll understand the precise legal issues. The ADA provision plaintiffs rely upon (42 U.S.C. § 12182(b)(2)(A)(ii)) states that 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 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[.]

The court underlined the words underlined above. I bolded "fundamentally alter."

Thus, the issues with DAS are (1) is a modification "necessary" (the issue the court addresses) (2) is the modification (almost always the one sought by the plaintiffs) "reasonable" and (3) would the requested modification "fundamentally alter" the services Disney offers. As explained above (and in more depth later) the court of appeals addressed only the first issue. It sent the case back to the district court for it to address the second and third issue.

The plaintiffs have to show the modification they want is reasonable. Disney will have to show the modification would "fundamentally alter" the guest experience at the Parks.

 

[jcb]

Remember how I said

The court also described the plaintiffs' park experiences in some detail. The descriptions indicate that, while some families used FastPass+ before going to the parks, not all the families of the families did so. This could be a real problem for them later...

Here is why this matters. In addressing what is "necessary" the court of appeals explained:

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. . . .

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. Because nondisabled guests must plan as well, Disney’s asking parents of disabled guests to do so is reasonable and not illegal.​

(Emphasis mine. I've left out the legal citations.)

When the lawsuit returns to the district court to determine whether the requested modification (near immediate access to attractions), I'd expect the district court (and Disney) to emphasize this point at least for those families of plaintiffs who do not believe they should have to make FastPass+ reservations before coming to the Parks.

 

[jcb]

I should also explain one fundamental point. When I talk about "reasonable modifications" it should be understood that it is accepted that "facilities are not required to make the preferred accommodation of plaintiffs’ choice." This is a quote from the decision. Generally, this point is more relevant to the "reasonableness" analysis, however, than the "necessary" analysis.

The ADA, however, isn't an all or nothing statute. Disney is required (and does, according to the decision) to work with individuals - not classes of individuals - to determine whether requested modification or some other modification Disney decides to offer is reasonable. The corollary of this principle is that if an ADA plaintiff refuses a reasonable modification, Disney's ADA obligation is fulfilled.

 

[jcb]

This is the crux of the court's decision to reverse the dismissal of the ADA claim:

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.

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.
​

 

[jcb]

The court's decision, while sending the case back to the district court, nevertheless, almost pats Disney on the back for the way it has implemented the DAS Card:

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.​

 

[jcb]

So, before addressing one other point, I'll wrap up this part of the discussion by trying to parse the court's ruling.

What the court held was that there were facts in dispute as to whether plaintiffs' request for near immediate access to the attractions was "necessary" to permit them the "equal enjoyment" of the Disney Parks as required by the ADA. In ruling that the plaintiffs might be able to persuade a judge that their requested modification is "necessary" the court assumed the requested modification was "reasonable."

For being a 65 page ruling, however, the decision seems very short on explaining why it found the requested modification was "necessary." I quoted pretty much the entire explanation in post number 8. That isn't much.

In fairness, whether a modification is "necessary" is a pretty simple analysis. It doesn't get into whether it is a good idea. It looks to the disability and asks whether the desired modification would help the disabled person equally enjoy the service, here riding attractions at the theme parks.

I don't want to be taken as slamming either sides lawyers but I wonder why lawyers bother arguing over whether a requested modification is "necessary." Disney argued this in the Segway lawsuits (link to be provided later) and the same court of appeals rejected the argument and sent that lawsuit back to the district court (I'm going on memory here so I may change this after I look at the ruling - ETA: I checked. I was close enough). This wasn't the only argument Disney lawyers made. They also argued to both courts that the requested modifications were not reasonable and would fundamentally alter the theme park experience (more on this later). Good lawyers (which Disney unquestionably has) never put all their eggs in one basket. I always try to give a judge several reasons why a lawsuit should be dismissed. You never know for sure which argument will appeal to a specific judge. In any event, again, without casting blame and with the benefit of hindsight, by arguing the requested modification was not "necessary" this opened the door for the district court to ultimately get reversed.

 

[jcb]

Now, to wrap up, what happens next. Disney can ask the court of appeals to reconsider or ask the full court (this decision is by three judges) to reverse. That isn't very likely primarily because the three judge panel was unanimous and the decision wasn't inconsistent with any other CA11 decision. Disney can ask the Supreme Court to decide whether the court properly resolved the "necessary" issue but the Supreme Court only agrees to decide a very small percentage of the cases it is asked to take and this decision doesn't really present the Supreme Court with one of the typical reasons it decide to review a court of appeals decision.

Most likely, Disney will focus on getting the district court to dismiss the lawsuit on the other grounds.

In this regard, the court of appeals notably went to the effort to include in the decision the specific order the plaintiffs wanted - while saying it would leave it to the district court to first decide whether the requested modification (sought as "injunctive" relief) was (or was not) "reasonable" or would "fundamentally alter" the park experience. Here is what the plaintiffs' attorney told the court of appeals he ultimately wanted a court to do if he proved an ADA violation:

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 [re-admission] 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.​

(Bold print is mine.)

Disney, of course, argues that the requested injunctive relief is unreasonable because it would require Disney to return to issuing GACs which were prone to abuse, citing Disney's 2013 analysis of GAC usage which showed (Disney explained) that "approximately 3% of guests at Disney World were issued GACs, but GAC-holding guests accounted for 30% of riders on one popular ride."

If plaintiffs continue to insist on "guarantees" that their wait for access to attractions will be limited to 10 to 15 minutes or for "unlimited" access to FactPass lines, I still think they will have a hard time convincing a judge that their requested modifications are reasonable in the sense that they would let these plaintiffs achieve equal enjoyment of the theme parks. Defining what is "enjoyed" will be crucial, however. Is the "enjoyment" experiencing the theme parks (as Disney has argued) or is it riding the individual attractions? I tend to think the former and some of the plaintiffs' own evidence - that they come to Disney to experience the attractions in a specific order - supports Disney's argument.

That's all. For now.

 

[HopperFan]

While you confused me a few times, I appreciate all the work and breakdowns to update.

This is the crux of the court's decision to reverse the dismissal of the ADA claim:

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.

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.
​

So if their child has no concept of time then they shouldn't know if they have waited 5 minutes or 25 minutes or 55 minutes. What they are saying is that they don't want to wait at all, they want what they want, when they want. This could be applied to any toddler as well.

Now, to wrap up, what happens next. Disney can ask the court of appeals to reconsider or ask the full court (this decision is by three judges) to reverse. That isn't very likely primarily because the three judge panel was unanimous and the decision wasn't inconsistent with any other CA11 decision. Disney can ask the Supreme Court to decide whether the court properly resolved the "necessary" issue but the Supreme Court only agrees to decide a very small percentage of the cases it is asked to take and this decision doesn't really present the Supreme Court with one of the typical reasons it decide to review a court of appeals decision.

Most likely, Disney will focus on getting the district court to dismiss the lawsuit on the other grounds.

In this regard, the court of appeals notably went to the effort to include in the decision the specific order the plaintiffs wanted - while saying it would leave it to the district court to first decide whether the requested modification (sought as "injunctive" relief) was (or was not) "reasonable" or would "fundamentally alter" the park experience. Here is what the plaintiffs' attorney told the court of appeals he ultimately wanted a court to do if he proved an ADA violation:

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 [re-admission] 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.​

(Bold print is mine.)

Disney, of course, argues that the requested injunctive relief is unreasonable because it would require Disney to return to issuing GACs which were prone to abuse, citing Disney's 2013 analysis of GAC usage which showed (Disney explained) that "approximately 3% of guests at Disney World were issued GACs, but GAC-holding guests accounted for 30% of riders on one popular ride."

If plaintiffs continue to insist on "guarantees" that their wait for access to attractions will be limited to 10 to 15 minutes or for "unlimited" access to FactPass lines, I still think they will have a hard time convincing a judge that their requested modifications are reasonable in the sense that they would let these plaintiffs achieve equal enjoyment of the theme parks. Defining what is "enjoyed" will be crucial, however. Is the "enjoyment" experiencing the theme parks (as Disney has argued) or is it riding the individual attractions? I tend to think the former and some of the plaintiffs' own evidence - that they come to Disney to experience the attractions in a specific order - supports Disney's argument.

That's all. For now.

How is Disney World, a private location offering a luxury vacation - that no one has a right to, being held hostage to unreasonable demands offering above and beyond what any other guest gets. DAS is not just an equal experience, it allows you to do other things while other guests are standing in lines. They are not asking for an equal experience, they are asking for an over and way beyond experience.

Especially considering what appears to be a pretty narrow holding, the decision is going into considerable detail about the nature of the plaintiffs' disabilities (generally, severe autism), their inability to wait much longer than 10 to 15 minutes, and the competing expert testimony about whether individuals with autism can learn to wait.

The court also described the plaintiffs' park experiences in some detail. The descriptions indicate that, while some families used FastPass+ before going to the parks, not all the families of the families did so. This could be a real problem for them later...

Interestingly, one fact I didn't know is that at least one of the plaintiffs is in physically his 20's. Legally (and medically, for all I know), that is irrelevant. I had just assumed all the plaintiffs were children. Silly me.

Using FastPass+ in conjunction with DAS can mean never entering SB lines at all.

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NOTE:

DS1, 34, is disabled, severe by many standards. When life became more difficult we started using the GAC and now we use the DAS. He has no concept of time, he has great difficulty with waiting, he is considered non-verbal and often can't express, he has severe panic attacks and anxiety, he obsesses (right now we are a month from a trip and 30-40 times a day I hear PINK DONUT aka the donuts at Joffrey's), he has a laundry list of disabilities and issues. He will never be independent or be left alone.

For 34 years our lives have been intertwined with many with disabilities, some quite severe, autism etc. DS2 actually worked with autistic kids for 4 years, many of them very difficult. I feel like I can comment, and I find this lawsuit offensive. Disney World is no one's right, and yes I've had times I couldn't take my DS1 because he was struggling. That is our issue, not Disney's. It's up to us to work with the generous tools they offer and make it work. With FP+ and DAS we make it work well .... and actually the DAS has made our trips less stressful. It forces us to take a moment in between rides; we eat, we rest, we hit the bathrooms .... and DS1 lasts longer now with less anxiety. This life means we think out of the box, we learn to read every slight shift in the wind, we have Plan A B and C and sometimes we just can't do what we want to do.

The DAS works. The GAC was broken, overused and abused.

 

[sandym718]

Very interesting and thank you for all your explanation! I have a hard time seeing any way that a court can think immediate and basically unlimited access is needed to provide “equal enjoyment”. The regular park-goer has to experience some times during the day that are not all that enjoyable - waiting in line as a big part of that. Completely eliminating any need to wait is for extra enjoyment (like a Make a Wish trip for example) not equal. Lines are part of Disney and any theme park. Plan accordingly based on your specific family needs or decide it’s not the right trip for you. My husband would be absolutely miserable in a super-crowded Park. As would my 2 yo niece who is going in this next trip. So we don’t go at Spring Break or Christmas. We avoid the worst parts of the day. We skip rides with long lines. Choices, personal responsibility... it just all goes back to the GAC abuse and now what is “expected”

 

[sandym718]

So if their child has no concept of time then they shouldn't know if they have waited 5 minutes or 25 minutes or 55 minutes. What they are saying is that they don't want to wait at all, they want what they want, when they want. This could be applied to any toddler as well.
.

This is my thought as well. And I mean absolutely no disrespect and am not comparing an adult or older child with disabilities to a toddler. But if the cognitive disability “symptom” that is causing the issue is the inability to understand time and/or inability to have the patience, etc to wait (even not in an actual line) - then don’t all toddlers have that same issue? And don’t their families have “decreased enjoyment” when they have to wait in lines? (And in the actual lines too). Seems like equal enjoyment to me. To me, it’s on the family to decide what is an acceptable wait for them - disabled individual, toddler, infant, elderly individual or just plain cranky kid or adult (my DH) and make the CHOICE accordingly. Getting on an attraction is not a NEED, it’s a want.

I also wonder, the people who filed this suit. Do they never wait in line anywhere? Even for Needs? Like groceries, bathrooms, bank teller? So much is online now I suppose a lot can be avoided. But Disney can be avoided too I guess. Or managed well.

 

[murmer]

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.​

So this part is not true! The majority of rides have waits over 15 mins almost all day except the golden 1st hr. Second if you have a return time you cannot get immediate access to lines under 15 mins you have to wait in the standby line you can’t be waved on if you have a return time. Also if the line is 15 mins or less we have been told to do standby we don’t get immediate access. It would be nice if this is how the DAS worked and how short the lines are but it is not.

 

[jcb]

So if their child has no concept of time then they shouldn't know if they have waited 5 minutes or 25 minutes or 55 minutes. What they are saying is that they don't want to wait at all, they want what they want, when they want. This could be applied to any toddler as well.

The phrase "no concept of time" is some sloppy writing on the court's part egged on by some sloppy argument by the plaintiffs. The full description of the plaintiffs' impairment is:

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

Again, there's been no finding that this evidence is true or that it is actually a recognized impairment for autism. Their expert witness (a Ph.D. "clinical neuropsychologist) did not say inability to wait is necessarily part of autism but that "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.” He also said, of the lead plaintiff (A.L.), “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.”

Disney presented expert evidence (from two Ph.D.'s) that

“Behavior modification strategies are helpful in reducing and accommodating symptoms of ASD”; and [self]-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 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.[/S]​

For purpose of the lawsuit the court had to accept the plaintiffs' assertions as true as a condition of deciding whether Disney was entitled to dismissal of the lawsuit as a matter of law. If the district court decides to hold a hearing, the judge (I'm pretty sure there is no jury) would then be permitted to decide which evidence, including expert evidence, is believed.

 

[HopperFan]

The phrase "no concept of time" is some sloppy writing on the court's part egged on by some sloppy argument by the plaintiffs. The full description of the plaintiffs impairment is:

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

Again, there's been no finding that this evidence is true or that it is actually a recognized impairment for autism. Their expert witness (a Ph.D. "clinical neuropsychologist) did not say inability to wait is necessarily part of autism but that "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.” He also said, of the lead plaintiff (A.L.), “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.”

Disney presented expert evidence (from two Ph.D.'s) that

“Behavior modification strategies are helpful in reducing and accommodating symptoms of ASD”; and [self]-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 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.[/S]​

For purpose of the lawsuit the court had to accept the plaintiffs' assertions as true as a condition of deciding whether Disney was entitled to dismissal of the lawsuit as a matter of law. If the district court decides to hold a hearing, the judge (I'm pretty sure there is no jury) would then be permitted to decide which evidence, including expert evidence, is believed.

If waiting were impossible then in life then they would have to stay in their home forever because there are waits in life. We could give a lengthy list of things in life these individuals do wait for and they all went/go to school where teachers are not allowing them to do whatever they want. We are right back to they want what they want when they want. And they could be doing "something" while waiting but that would mean the parents would take an effort to plan their time and prepare them for the transitions of the day. Transitions can be very hard but they have to be a top priority in teaching and parents have to reinforce it, over and over. No it's not fun, I know, but you do it because that is what is best for the child. And I repeat, Disney is not a right or requirement in life. If you can't make it work then you need to find something else to enjoy.

I suppose my question now is ............ have any of these people stepped foot in a park since the DAS? If they have then I suppose they have found a way to make it work and have no case. If they have not, then I am sure they have filled their time with other things to enjoy and shown that Disney is not critical to their lives. It is just too bad that a few people are always trying to ruin things and give negative PR to a community of people who struggle to fit in every single day.

 

[jcb]

How is Disney World, a private location offering a luxury vacation - that no one has a right to, being held hostage to unreasonable demands offering above and beyond what any other guest gets. DAS is not just an equal experience, it allows you to do other things while other guests are standing in lines. They are not asking for an equal experience, they are asking for an over and way beyond experience.

This wasn't resolved by the court of appeals. The answer to this might turn on how you define the "enjoyment." Plaintiffs' "equal enjoyment" argument is easier to understand if you define what they "enjoy" as riding specific attractions instead of enjoying visiting a theme park. Their logic (not that I agree) seems to be that DAS prevents them from having near immediate access to a specific attraction (one plaintiff always start his MK visit at Jungle Cruise) because they have to wait more than 10 to 15 minutes for that attraction. But while I'm pretty sure plaintiffs made this argument at some point in the district court I didn't see this same argument in their brief to the court of appeals. Perhaps that is because their own evidence refutes it. A.L., the lead plaintiff, for example, "needs to visit the attractions in a precise order" and his parents say he can't wait longer than 10 to 15 minutes for any attraction.

 

[jcb]

I suppose my question now is ............ have any of these people stepped foot in a park since the DAS? If they have then I suppose they have found a way to make it work and have no case. If they have not, then I am sure they have filled their time with other things to enjoy and shown that Disney is not critical to their lives. It is just too bad that a few people are always trying to ruin things and give negative PR to a community of people who struggle to fit in every single day.

They claim to have tried to use DAS and re-ads (again, some don't say whether they have used FastPass+ before entering the park). In one brief to the court of appeals, A.L. asserted: "A.L. has returned to the parks; he has done so 'less frequently,' and he has not returned to the Magic Kingdom park."