The question is can plaintiffs sue to force the city to comply with the Attorney General’s regulations. The answer is it depends on whether the Attorney General’s regulations require more than does the ADA. Like most of the law today, this is a subjective test which could go either way depending on the person who applies it.

The Tenth Circuit said private plaintiffs could sue to enforce the regulations, because “The regulations simply provide the details necessary to implement the statutory right created by § 12132 of the ADA. They do not prohibit otherwise permissible conduct.” Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 858
(2003).

The First Circuit, in Iverson, said plaintiffs could not sue to enforce the regulations, because “we hold that the [regulation] imposes a burden on public entities not imposed by [The ADA] itself and, therefore, is not enforceable through the instrumentality of [The ADA’s] private right of action.”

Of course the First Circuit doesn’t call this a disagreement on a subjective standard, rather they claim the Tenth Circuit was “simply incorrect.”

I wonder how much time and money plaintiffs and defendants will have to waste litigating this issue before the Supreme Court grants cert, and hopefully resolves it once and for all.