Here & Now (Pt. 3): Isn't Standing In Line An Essential Rule Of The Park .. Even For Autistic Guests?

Click here to read Here & Now (Prologue): The Question of Autism In Amusement Parks Under the ADA
Click here for Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary? 
Click here for Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?

What does this ...

have to do with this?

A recent lawsuit brought against the Walt Disney Company has brought into the public spotlight an issue that the amusement industry has struggled with for years:  what accommodations are legally required for autistic guests and other guests with cognitive disabilities that cannot wait in line.  Last year, Disney’s parks (along with several others, including the Cedar Fair parks) instituted a policy that dramatically changed the procedure for these guests.  Rather than being granted on-demand, immediate boarding privileges upon arrival at a ride (as had been the practice for years), guests at these parks must now check-in, either at the ride or at a guest relations location (depending on the park), and make an appointment to return, at which time the guest and his party will be immediately boarded.  The appointment time corresponds to the length of the line.  So is this procedure acceptable under the Americans With Disabilities Act?  The plaintiffs in the recent Disney lawsuit say it is not – that immediate, on-demand boarding is a required accommodation under the law.  But is it?   

The first two pieces of this series have looked at the questions of whether immediate, on-demand boarding on amusement rides is necessary (giventhat front-of-the-line access does not seem to be requested in any other publicaccommodation) and / or reasonable (given prior case law in the cruise shipcontext finding it is not).  I’m ending this series by considering the third element of an ADA claim of this sort:  Does allowing on-demand, immediate boarding “fundamentally alter the nature of” the amusement park experience?  I believe it does – in dramatic fashion.

The question of “fundamental alteration” is a critical one.  The ADA requires operators of public accommodations, such as amusement parks, to make “reasonable modifications in polices, practices, or procedures, when such modifications are necessary to afford … goods [and / or] services to individuals with disabilities, unless the [park] can demonstrate that making such modifications would fundamentally alter the nature of such goods [and / or] services.”  42 U.S.C.A. § 12182(b)(2)(A)(i).  Even assuming that the conclusions of my last two pieces are dead wrong, that on-demand immediate boarding is both necessary and reasonable, does such an accomodation “fundamentally alter” the goods and services that an amusement park offers?  If it does, then the accommodation is not required under the law.  So what does it mean to “fundamentally alter” the goods and services offered by an amusement park?

The most well-known case to discuss the issue is PGA Tour, Inc. v. Martin, 532 U.S. 661 – the case that held that use of a golf cart by professional golfer, Casey Martin, who has a disability that makes walking significantly painful, did not “fundamentally alter” PGA tournaments.   In assessing Mr. Martin’s claim under the ADA, the Supreme Court stated:

In theory, a modification of petitioner’s golf tournaments might constitute a fundamental alteration in two different ways.  It might alter such an essential aspect of the game of golf that it would be unacceptable even if it affected all competitors equally; changing the diameter of the hole from three to six inches might be such a modification.  Alternatively, a less significant change that has only a peripheral impact on the game itself might nevertheless give a disabled player, in addition to access to the competition as required by Title III [of the ADA], an advantage over others and, for that reason, fundamentally alter the character of the competition.

532 U.S. at 682-83.  Expanding on the second of these two, the Court differentiated between “essential” and “peripheral” rules noting that the waiver of an essential rule of competition for anyone would fundamentally alter the nature of petitioner’s tournaments,” but that a “modification that provides an exception to a peripheral tournament rule without impairing its purpose cannot be said to ‘fundamentally alter’ the tournament.”  Id. at 689.  

So what do golf carts have to do with on-demand, immediate access to amusement park rides for autistic guests?  According to the Martin case, the question that must be asked is whether immediate boarding privileges alters an “essential rule” of an amusement park or alters and impairs the purpose of a “peripheral rule” of the park.  If either of these is the case, no modification is legally required under the ADA.  For purposes of this article, I don’t think we even need to discuss whether waiting in line is a “peripheral rule”  because there really can be no reasonable argument that waiting in line for an amusement ride is anything other than an “essential rule” of every park.  This is apparent from a variety of perspectives.  

1.         From a park policy perspective, every park I have ever worked for, worked with, or visited (and that is a lot of parks, I assure you), has a written line jumping policy included in their guest brochures and on signage at the ride.  These policies typically advise guests that line jumping is cause for removal from the park without a refund, that saving a spot in line for someone else is prohibited, and that guests cannot leave their place in line and return.   While not nefarious as line-jumping is typically thought-of, the effect of immediate, on-demand ride access is really no different – in either case one guest has a significantly shorter wait for an attraction than other guests in line.  These rules are fundamental and universal to every amusement park I know of and exist to provide a fair experience to all park guests and to allow the park to operate efficiently.  Trust me when I tell you that parks hear about it when someone gets to ride without waiting in line - even when that someone has a disability.  Allowing guests to skip the line all together would thus seem to be a “waiver of an essential rule” in place at virtually every amusement park.    

2.         From a guest experience perspective, while it is certainly not the best part of visiting any amusement park, no one could seriously contend that it was not an integral part of the experience.  To illustrate this, I have attempted to quantify the “essential-ness” of waiting in line to an amusement park guest's experience.  To that end, I searched Yelp reviews (I would have searched TripAdvisor, but it does not have a search feature for reviews) for 23 different amusement parks, small and large, throughout the country, to see how often reviews mentioned various aspects of a typical amusement park experience.  Specifically, I looked for mentions of “Rides,” “Lines,” “Food,” “and “Games.”  While obviously an unscientific survey, I think it is reasonable to presume that, when guests review an amusement park, they tend to focus on those things that are most important – most essential - to their experience.  Here’s what I found:

• ·         Total number of reviews searched:  10,141
• ·         Percentage of total reviews mentioning “Rides”:  67.28% (6823 total reviews)
• ·         Percentage of total reviews mentioning “Lines:  34.09% (3457 total reviews)
• ·         Percentage of total reviews mentioning “Food”:  26.12% (2649 total reviews)
• ·         Percentage of total reviews mentioning “Games”:  3.72% (377 total reviews)

Based on this informal and admittedly unscientific survey, guests clearly view waiting in line as an essential part of their day at an amusement park.  Indeed, mentions of “lines” was second only to “rides” – the obvious draw at any amusement park – in online reviews.  If guests did not view waiting in line as an essential (albeit not always a positive) component of the amusement park experience, it is difficult to imagine why it would be the topic of such significant discussion when reviewing their day in the park. 

 

3.         Finally, and this is the most compelling of all to me, from an economics perspective there can be little doubt that waiting in line is an “essential rule” of the park because it directly impacts the price of the goods and services the park offers.  

Consider a more familiar context – a movie theater.  Imagine a guest that has a disability that makes it impractical to visit the theater frequently (I don’t know what disability that would be, but go with me here).  The guest thus requests that he be permitted to see two movies back-to-back during a single visit, and that the theater only charge him a single ticket to do so.   For the $10 admission price paid by this hypothetical customer, he would get two films whereas all the other customers would get one.    Would anyone argue that such a modification to the theater’s admission policies would be anything but a waiver of the essential rule requiring a ticket to see each film?  Would anyone seriously contend that this is not a fundamental alteration of the services the movie theater provides?

But that is exactly what the plaintiffs in the Walt Disney suit are asking the Court to require.  A guest pays an admission fee to enter most amusement parks and thereafter they have access to  the rides and attractions the park offers.  Because guests spend a good portion of their day waiting in line, it is generally impossible for a guest to experience every attraction in the park or to ride a ride as often as desired.  The wait in line simply takes too much time.  The result is that in a mid-size amusement park on a moderately busy day, a guest may have time to experience a dozen rides.  Assuming a $50 admission ticket, that means that a typical guest pays about $4.17 per ride.  

Removing lines from the equation changes the economics of this transaction dramatically.  A guest that can avoid lines may have access to twice the number of rides (perhaps more) as the typical guest.  Assuming the same admission price, these guests are only paying about $2.08 per ride.  They are, in effect, getting to see two movies for the price of one.  They are asking Disney and other amusement parks to offer the same rides and attractions as offered to other park guests, but at a much reduced cost.  If that is not a “fundamental alteration” of the services a park, or any business for that matter, offers, I don’t know what would be.

The Disney lawsuit is certainly one worth watching as it will undoubtedly have an impact on the policies and procedures adopted at parks all over the country.  Should a park offer immediate boarding access to disabled guests?  Perhaps – but that should be a decision made in the interest of guest service, not as a legal mandate under the ADA.

Click here to read Here & Now (Prologue): The Question of Autism In Amusement Parks Under the ADA
Click here for Here & Now (Pt. 1): Is Immediate Ride Boarding For Autistic Guests Really Necessary? 
Click here for Here & Now (Pt. 2): Is Immediate, On-Demand Ride Access For Autistic Guests Reasonable?