About a year and a half ago, I wrote a blog post about a then-newly filed multi-plaintiff lawsuit alleging Walt Disney World discriminated against guests who have emotional or cognitive disabilities where parents of autistic children sued Disney under the Americans with Disabilities Act (“ADA”) because Disney changed from the “Guest Assistance Card” (“GAC”) to the “Disability Access System” (“DAS”).
I’ve written about the lawsuit several other times. Since my last posts on the case, the federal court in Los Angeles transferred the entire lawsuit to Orlando. The federal judge in Orlando then required each family to file a separate lawsuit and later dismissed their state law claims. (She allowed these to be refiled in other courts but we can forget about this for now). After discovery and several related disputes, Walt Disney World has asked the court to rule that one set of plaintiffs’ (referred to below by the initials “A.L.” as publicly, children may anonymously participate in litigation) evidence is insufficient as a matter of law.
Fundamentally, of course, the lawsuit is about having to wait in line for an attraction. The plaintiffs claim DAS doesn’t help them and want the court to order Disney to provide them with the access they had when Disney accommodated them using GAC. Disney disputes this – saying DAS works for many guests including those with autism – arguing that the plaintiffs are not seeking a policy modification caused by their disability but one “born of preference or choice, not of medical necessity.”
Disney’s brief makes several points. I won’t go into each. Disney’s brief summarizes its arguments:
plaintiffs sued under a statute whose purpose is to ensure access to public accommodations for persons with disabilities — but plaintiffs were never excluded from or denied access to anything during their visit to the Walt Disney World Resort (“WDW”). In fact, under Disney’s Disability Access Service (“DAS”), which allows guests with autism and other cognitive disabilities to hold a place in line for rides without standing in the actual line — thereby giving them time to go to other attractions while they wait virtually — plaintiff A.L. and his family had the opportunity to experience all the same or even more rides and attractions than the majority of other guests and with much less wait time.
Even though their claim is couched in the language of equal access under the Americans with Disabilities Act (“ADA”), it is clear that what plaintiffs really want is for Disney to accommodate A.L’s specific, immediate, and unpredictable personal preference for instant and unrestricted access to the rides of his choice — regardless of how popular the rides are or how long other guests (including others with disabilities) have to wait in line. The ADA requires no such thing, either to favor a particular person or to disadvantage other patrons.
There is no evidence that A.L. was prevented· from accessing the rides at WDW or that the relief sought is necessary to afford access to A.L., the required elements of a claim under the reasonable modification provision of Title III of the ADA. To the contrary, with his DAS card and other ride passes given to A.L. on the day of his visit, he could have experienced his preferred rides at the Magic Kingdom, in whatever order he chose and with little or no waiting. Instead, his mother, plaintiffD.L., rejected the DAS system out of hand and took her son on only one ride [the Jungle Cruise] before “redirecting” him to a show, a parade, and other attractions. Turning the facts on their head, this lawsuit alleges that plaintiffs were discriminatorily denied access to the very rides they chose not to go on.
What plaintiffs are actually seeking to achieve is not “access” — which they already had — but rather fulfillment of their subjective desire to follow a particularized routine of experiencing all their favorite rides in a precise order of their choosing, without having to wait anywhere at any time. Their very subjective and personal routine, which may reflect nothing more than what they did in the past, is not based on a medical need or inherent attribute of autism, as plaintiffs assert. Courts have consistently ruled that plaintiffs are not entitled to the precise and self-defined accommodation of their choice. Disney is not obligated to operate its parks so as to guarantee that each of A.L’s preferences is fulfilled and at the expense of equal treatment of everyone else.
Even if plaintiffs could make a persuasive showing that Disney has to throw out DAS to afford access to A.L., plaintiffs would still have to show their request is “reasonable.” They demand that Disney adopt a version of the prior Guest Assistance Card (“GAC”) system — a system never required under the ADA — which fraud and abuse was making impossible to sustain. Plaintiffs cannot prove that reverting to the disruptive and unworkable GAC is a “reasonable” accommodation.
Disney’s evidence suggests that Disney did away with GAC because it was being abused and it was not working as designed. One of Disney’s witnesses (Director of Park Operations) explained that GAC was designed to work in six “tiers”, but “it had essentially become everyone at the top level because of increased awareness, because of social media” and because Disney cannot ask a guest to prove that the guest has a disability which necessitated top tier access. The same witness explained Disney knew of “exaggeration and fabrication of need and we even saw some blatant fraud,” the latter coming “from guests just fabricating their needs to get the pass for themselves if you were willing to just go and ask for a pass for yourself.”
One other witness explained that a cast member working at City Hall came to him “very upset” because the cast member watched “a teenage boy walk out . . . holding up the GAC card to his friends at the bottom of the stairs, they high-fives them [sic] and then just kind of skipped off as if they just succeeded in getting a GAC card even though they probably didn’t deserve it.”
Disney was also seeing unexpired GACs being sold on eBay and Craigslist and counterfeit GAC cards being provided to guests who bought theme park tickets from less than entirely reputable ticket sellers on highway 192. Disney was also aware of publicity about annual pass holders acting as paid tour guides by using their GAC cards to provide immediate access to attractions. Disney provided anecdotal evidence to support the publicity, recounting that on December 28, 2012, a guest in the FastPass queue at Expedition Everest said he needed to catch up with his paid “tour guide” only to learn that the “tour guide” was using his GAC card to give “paid tours of Disney with access to FastPass.” It was the “second guest in a month” Disney caught using “a GAC card as a paid tour guide.”
Ultimately, Disney’s goal in developing DAS “was equal access”, though as Disney describes it, DAS now offers greater access than FastPass+ in two respects. First, DAS permits a holder to return to the attraction any time after the initial return time while FastPass+ return end times are now being enforced. Second, DAS does not limit to three attractions that may be accessed (though even here, FastPass+ users may be awarded additional FastPasses if all have been used). Finally, Disney believes DAS is less subject to being as abused because it has “put some limits in place as it pertains to transferability” because DAS passes include a photo id requirement and the pass cannot be sold on the “street corner” (especially now that it is linked to a MagicBand or theme park ticket).
Disney argues the lawsuit should be dismissed because “[i]t is not reasonable for any guest to expect immediate access to all of their favorite rides at one of the world’s most popular theme parks, including rides that most guests may have to wait more than an hour to experience.” As expected, Disney argues that the change the plaintiffs want – a return to GAC or at least to an “instant and unrestricted access” to attractions – amounts to giving the plaintiff more than non-disabled guests receive. As Disney says, “nearly every family visiting WDW would probably prefer to go on any ride they want, as soon as they want, for as many times as they want, and in any order they want.” Even so, DAS “provides more than equal access to such guests overall “because they can experience the most popular attractions faster and, if they desire, in greater number than what [redacted]* of guests [i.e., non-DAS guests] at Walt Disney World can do without DAS.”
Disney also explains that a return to GAC – with its “large-scale fraud and abuse” – would “adversely impact the ride opportunities for the vast majority of guests and thereby fundamentally alter the services provided” by causing longer attraction wait times for other guests. The “excessive use of GAC fundamentally altered the company’s ability to deliver attraction experiences to [redacted]* guests, as GAC cardholders were “consuming so much of [Disney’s] preferred attraction capacity.”
The plaintiffs have also asked the court to rule in their favor as a matter or law. So far as I have found, the plaintiffs have not publicly filed a brief in support of their motion. Their motion argues Disney violated the ADA by not individually assessing “A.L’s” needs, that DAS is a “one-size fits all” program that violates the ADA ( (Disney denies these assertions) and asks the court to order Disney to “permit him access to Disney’s rides and attractions through Disney’s Fastpass lines.” Without seeing their brief, it is hard for me to say exactly what the plaintiffs want. Their demand to be provided with access through “FastPass lines” is curious since that is exactly what Disney says it is doing.
Further, as the FAQ in the DISabilities forum of discards.com shows, DAS has been linked to guest MagicBands since April 30, 2015. Thus, cast members may “authorize DAS for guests and provide attraction return times by loading the information into their electronic tickets” so that “[o]nce the return time arrives and the DAS return time is redeemed, a guest may then obtain another return time for the same attraction or for any other attraction.” Because DAS users may also take full advantage of FastPass+ before arriving, Disney argues that “[c]ombined with the FastPass system, this gives DAS guests the opportunity to experience a very high number of attractions in a single day — far more than most guests could without DAS.”
While I believe Disney’s arguments have significant merit, it is too early to say that the court will definitely rule in its favor. It would be unfair to make a decision based solely on reading Disney’s brief and supporting evidence especially given that important aspects of Disney’s evidence (including, notably, how well DAS works and the likely impact of abuses should it be required to return to GAC) are not public. The plaintiffs have a right to respond to Disney’s arguments and, while their position seems to be clear enough, they will have the right to try to persuade the court that (1) DAS does not work for them and (2) it would not be unreasonable to force Disney to make changes to DAS for them (and all other guests who have similar disabilities). Even if the court rejects Disney’s motion, however, it should have the benefit of narrowing the issues of trial and in forcing the plaintiffs to say exactly what it is they want Disney to do for them. With the trial set to begin March 1, 2016, a ruling is likely to be issued sometime early next year.
*Disney’s brief (and supporting documentation) keeps specific attraction wait times (including historic average wait times) and other information confidential. It also keeps confidential many facts about the development and implementation of DAS (including, as the “redacted” passages indicate, precise information about the extent to which the abuse of GAC might have been causing longer wait times for other guests). In fact, Disney lodged its brief and filings with the court over two weeks ago but asked the court to keep all of its filings out of the public view. (The plaintiffs did the same thing). The court rejected these requests, requiring Disney (and the plaintiffs) to file public versions of the briefs and supporting documents but permitted them to redact specific confidential information.