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Case 2:14-cv-08013-FMO-AGR Document 322 Filed 06/05/17 Page 6 of 11 Page ID
#:32378
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be denied the benefits of the services, programs, or activities of a public entity, or be subjected
to discrimination by any such entity.” 42 U.S.C. § 12132. “A public entity shall make reasonable
modifications in policies, practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the service, program, or activity.”
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28 C.F.R.
§ 35.130(b)(7)(i). “Because the applicable provisions of the ADA and the Rehabilitation Act are
‘co-extensive,’ [the court] discuss[es] both claims together, focusing on the ADA.” M.R. v. Dreyfus,
697 F.3d 706, 733 (9th Cir. 2012). Similarly, California Government Code § 11135(b) affords the
same level of protections as the ADA. See Cal. Gov’t Code § 11135(b) (“With respect to
discrimination on the basis of disability, [state] programs and activities . . . shall meet the
protections and prohibitions contained in . . . the federal Americans with Disabilities Act[.]”).
In enacting the ADA, Congress found that “historically, society has tended to isolate and
segregate individuals with disabilities, and, despite some improvements, such forms of
discrimination against individuals with disabilities continue to be a serious and pervasive social
problem.” 42 U.S.C. § 12101(a)(2). “Moreover, Congress found that discrimination against
individuals with disabilities persists in such critical areas as institutionalization, and that individuals
with disabilities continually encounter various forms of discrimination, including outright intentional
exclusion, failure to make modifications to existing facilities and practices, and segregation[.]”
Dreyfus, 697 F.3d at 733 (internal citation, quotation marks, and alteration marks omitted).
architectural, communication, or transportation barriers, or the provision of auxiliary aids and
services, meets the essential eligibility requirements for the receipt of services or the participation
in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). It is undisputed that
plaintiffs are all qualified individuals with disabilities within the meaning of the ADA. (See,
generally, Dkt. 194, Joint Br.).
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Defendants have not raised a fundamental alteration defense in opposition to plaintiffs’
Motion. (See, generally, Dkt. 194, Joint Br.; see also Dkt. 200, Defendants’ Response to Second
Supplemental Statement of Interest [of the United States of America] at 1 (“Defendants did not
intend to raise that defense in their opposition to Plaintiffs’ third MSJ, and have not asserted it at
any other time during this case.”)).
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