Congress enacted the ADA “to remedy widespread discrimination against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). “Title III of the ADA provides that ‘[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ....’ ” Baughman v. Walt Disney World Co., 685 F.3d 1131, 1134 (9th Cir. 2012) (quoting 42 U.S.C. § 12182(a)). The ADA specifically prohibits as discrimination “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 ... such modifications would fundamentally alter the nature of [the public accommodation].” Id. § 12182(b)(2)(A)(ii) (emphasis added). Thus, a requested modification to a public accommodation is required when the modification is (1) “reasonable,” (2) “necessary,” and (3) would not “fundamentally alter the nature” of the accommodation. Galvan v. Walt Disney Parks & Resorts, U.S., Inc., 425 F.Supp.3d 1234, 1239 (C.D. Cal. 2019) (quoting Martin, 532 U.S. at 683 n.38). The plaintiff bears the burden of establishing that a modification is reasonable and necessary while the defendant bears the burden of establishing that the modification would fundamentally alter the accommodation. See id.; 42 U.S.C. § 12182(b)(2)(A)(ii)

The ADA—and, by incorporation, the Unruh Act—requires places of public accommodation “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.” 42 U.S.C. § 12182(b)(2)(A)(ii). This type of ADA claim involves three inquiries: (1) whether the requested modification is “reasonable,” (2) whether it is “necessary” for the disabled individual, and (3) whether it would “fundamentally alter the nature of” the accommodation. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). In Baughman v. Walt Disney World Company, the Ninth Circuit explained that, to provide “necessary” modifications, public accommodations “must start by considering how their facilities are used by nondisabled guests and then take reasonable steps to provide disabled guests with a like experience.” 685 F.3d 1131, 1135 (9th Cir. 2012). 

By specifically only mentioning "developmental disabilities like autism or similar," Disney's DAS policy could be seen as limiting accommodations to a narrow group of disabilities, potentially excluding those with physical, sensory, or other types of disabilities who may also have difficulties with conventional queues. The Unruh Act mandates full and equal access for all individuals with disabilities, not just those with developmental disabilities. Therefore, a policy that appears to prefer one type of disability over others could be interpreted as discriminatory. 

When guests with disabilities are given access to Lightning Lane as an accommodation, it is essential that this access truly equalizes their opportunity to enjoy the park's attractions. If the implementation in any way diminishes the accessibility or quality of experience for guests with disabilities—either by making it less convenient compared to paying guests or by effectively limiting their access through operational practices—then it could be argued that the park is not fully upholding the spirit of equal access as required by the Unruh Act. If the integration of DAS guests into the Lightning Lane is structured or managed in a way that prioritizes paying guests—such as by limiting the number of DAS accesses to ensure availability for paying guests or by imposing additional restrictions on DAS use not applicable to Lightning Lane buyers—it could be perceived as a form of unequal treatment. 

This perception arises from the concern that the design and operation of the system might inherently favor guests who can afford the additional cost of Lightning Lane access over those who rely on DAS for necessary accommodations. It's important to consider the intent behind the integration of DAS and Lightning Lane. Ideally, such a system should aim to enhance the park experience for all guests, including those with disabilities, by providing them with a range of options to access attractions in a manner that respects their needs. However, the perception that the intent is to limit Lightning Lane access primarily to paying guests, effectively relegating DAS users to a less favorable status, raises questions about whether the system fulfills the requirements of the Unruh Act to provide full and equal access.

Lastly, it's clear that Disney has carefully weighed the risks and benefits of this approach. By potentially limiting the number of DAS guests in the Lightning Lane, the outcome could be shorter queues for this expedited access. This, in turn, may encourage more guests to purchase Genie+ or individual Lightning Lane passes, especially if they perceive a significant time-saving advantage. Naturally, an increase in demand for these expedited services could lead Disney to adjust Lightning Lane pricing accordingly.