• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

  • Home
  • About William D. Goren, J.D., LL.M.
  • Contact
  • Log In

captions

Fundamental Right to Access Legislative Proceedings

July 2, 2018 by William Goren 2 Comments

Happy Fourth of July holiday everyone!

 

Today’s case, National Association of the Deaf et. al. v. State of Florida et. al., comes to me from Courtney Cunningham who has been working this case for some time. The National Association of the Deaf (by way of disclosure, I have known the Executive Director of NAD for years), also stepped in. As usual, the blog entry is divided in the categories and they are: facts; issues presented; holdings; court’s reasoning sovereign immunity; court’s reasoning failure to state a claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Also, a heads up with respect to the following two weeks. My daughter comes back from camp on Monday after being away for four weeks. So, next week could be really interesting. With respect to the following week, my daughter starts school August 1 (I know we start really early here), and so a blog entry might not go up until the middle of that week. Now, turning to our case of the day…

 

I

Facts

The Florida Senate and Florida House livestream their legislative proceedings through a website and maintain archives of those videos. Florida State University also owns or operates a website that livestreams legislative proceedings and maintains archived recordings of such videos. The videos are not captioned. Videos are also posted on social media and those are not captioned either. In July, 2017, Sierra, a Deaf individual and a member of NAD sent a letter to the Florida Senate and to the Florida House requesting that they provide captions on the videos of their legislative proceedings. Neither responded to his letter or provided captions. NAD then filed a complaint against the Florida Senate and the Florida House with the Federal Communications Commission, probably because of this blog entry, different case involving the same plaintiff. That complaint was closed in March, 2018. NAD brought suit on behalf of its members, which included the complaining party, seeking monitory and injunctive relief. Defendants through the Florida Channel (a public affairs programming service wholly funded by the Florida legislature and produce and operated by Florida State University’s PBS station), responded to the FCC complaint by saying the Florida Channel produces a 24 hour television programming feed that is closed captioned. Any segment of legislative videos aired on that program are captioned. It also livestreams legislative proceedings, which is separate from the 24 hour television program. Those videos, which come from a different source than the captioned video displayed on the 24 hour television program, are put up on the Internet and made available to the public but do not include captions.

 

II

Issues Presented

  1. Is sovereign immunity applicable?
  2. Did plaintiffs fail to state a claim?

III

Holdings

  1. No
  2. No

IV

Court’s Reasoning regarding Sovereign Immunity

  1. A trend in the courts exists stating that absent the need to vindicate a fundamental right or protect a suspect class, Congress may not abrogate a State’s sovereign immunity.
  2. Relying on a decision from the Western District of Oklahoma, the court said that the plaintiff had a fundamental right of access to publicly available information needed to participate in the democratic process. Also, the Western District of Oklahoma noted that in enacting the ADA, Congress found pervasive discrimination by State governments against persons with disabilities, including the deaf and hard of hearing with respect to judicial resources.
  3. Plaintiffs are not seeking just any public information, but information going to the very heart of the democratic process-the text of legislative proceedings. Accordingly, the fundamental right to participate in the democratic process is involved.
  4. Even if the fundamental right to participate in the democratic process is not involved, sovereign immunity is still forcibly waived because Congress found pervasive discrimination by State governments with respect to those with hearing loss.
  5. Justice Breyer in his dissent in the Board of Trustees of the University of Alabama v. Garrett documented more than a thousand instances of State discrimination against those with hearing loss in a variety of contexts.
  6. In the ADA’s findings section, 42 U.S.C. §12101(a)(3), Congress noted discrimination against individuals with disabilities in a variety of critical areas, including access to public services.
  7. Adding captions to legislative videos removes a barrier to access for a service already provided to those who do not have a hearing loss. Further, the ADA allows defendants certain affirmative defenses. Accordingly, title II of the ADA is a congruent and proportional application of the 14th amendment and sovereign immunity is forcibly waived.
  8. Sovereign immunity does not apply where the plaintiff seeks prospective injunctive relief against individuals heading State entities, which is the case here.
  9. Where a State receive federal funds, sovereign immunity is waived. It is simply too early in the case absent discovery to reach the conclusion that the State does not take federal funds.

V

Court’s Reasoning Failure to State a Claim

 

  1. Stating a claim under title II of the ADA or §504 to Rehabilitation Act means showing: 1) plaintiff is a qualified individual; 2) plaintiff was excluded from participating in a public entity’s services, program, or activities; and 3) plaintiff was discriminated against because of his disability.
  2. Citing to the case we discussed here, the court said whether plaintiff was excluded from the public service turns on whether he had an equal opportunity as someone without a disability.
  3. Florida Channel’s response to plaintiff’s FCC complaint indicated that some legislative proceedings are broadcast with close captioned but not all. A person without a hearing loss gets to watch all legislative proceedings online, but a person with a hearing loss may watch only those legislative proceeding that the Florida Channel chooses to broadcast. That does not constitute an equal opportunity.
  4. Proving deliberate indifference as we have discussed previously, means showing that the defendant knew that harm to a Federal protected right was substantially likely and failed to act on that likelihood. Here, allegations in the complaint are that the plaintiff gave defendant notice of the alleged violations of title II of the ADA and §504. Further, NAD filed a complaint with the FCC prompting a response from defendants. Also, Sierra sent letters to the Florida House and to the Florida Senate, which the defendants never responded to. Finally, defendants response to the FCC complaint indicates no intent to change their current practices.

VI

Takeaways

  1. If you are a State legislature streaming legislative proceedings live, you better be sure they are captioned.
  2. Accessing publicly available information needed to participate in the democratic process is a fundamental right and therefore, any discrimination is subject to strict scrutiny.
  3. Language in the opinion suggests that with respect to discrimination against people with hearing loss, title II may be across-the-board, a permissible use of the equal protection enforcement clause.
  4. Sovereign immunity does not apply to injunctive relief.
  5. If you are representing a State agency and claim that you do not receive federal funds, that by itself, will not get you a motion to dismiss165
  6. .
  7. Whether a person is excluded from a program, service, or activity turns on whether that person has an equal opportunity as someone without a disability.
  8. As we discussed in the blog entry noted above, deliberate indifference but not mean the same thing as deliberate indifference in tort law.
  9. Due to what deliberate indifference means, it makes a great deal of sense for a plaintiff to issue a demand letter before filing suit under title II of the ADA. Such a letter would put the defendant on notice that a Federal protected right was involved and that they may be failing to act on that likelihood.

 

Have a safe and happy Fourth of July everyone!

Filed Under: ADA, Constitutional law, Federal Cases, General, Rehabilitation Act, Title II Tagged With: §504, 42 U.S.C. §12101, ADA, Board of Trustees of University of Alabama v. Garrett, captions, congruent and proportional, deliberate indifference, equal opportunity, Federal Communications Commission, Federal protected right, Florida house, Florida Senate, fundamental right, legislative proceedings, legislative videos, Liese v. Indian River County Hospital District, live streaming, motion to dismiss, national Association of the Deaf v. state of Florida, rehabilitation act, Reininger v. Oklahoma, Sierra v. school board of Broward County, sovereign immunity, state legislature, title II

Primary Sidebar

Search

Subscribe to Blog

NOW AVAILABLE

Understanding the ADA 4th Edition

ABA JOURNAL WEB 100

2014-2018: 5 Consecutive Years!

2017 & 2016 FEEDSPOT TOP 100 LEGAL BLOG

Recent Posts

  • Failure to Accommodate, Direct Evidence, and Adverse Action December 10, 2019
  • Intent to Return December 3, 2019
  • Hostile Work Environment Issues and Demotion as a Reasonable Accommodation November 18, 2019
  • Interactive Process Framework November 11, 2019

ADA Legal Resources

  • Department of Justice ADA Web Site
  • Disability Discrimination, EEOC Info
  • DuPage County bar Journal, The Brief
  • Job Accommodation Network
  • Midwest Center for the Law and Deaf
  • National Association of Attorneys with Disabilities (NAAD)
  • Understanding the Americans with Disabilities Act

Articles

  • ABA legal technology resource center roundtable discussion of fixed fees
  • ADA and Mediation/Arbitration: Things to Think About
  • Affirmative-action and persons with disabilities
  • Americans with Disabilities Act Claims: Is a Mixed Motive Jury Instruction Dead?
  • An ADA Checklist as You Go About Your Practice
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Expect huge impact from DOJ regulations implementing Titles II and III of ADAAA
  • Help your institution avoid some common mistakes when dismissing students with disabilities
  • Internet addiction, ADA, and employment
  • Internet and Title III of the ADA
  • Is Your University or College's Homepage Accessible to Prospective Students with Visual Impairments?
  • Legal Liability of Buying or Developing Inaccessible Technology
  • Reassignment and the ADA: Is It a Matter of Right and How Do You Prove It up?
  • Service dogs and the ADA
  • Should Your Law Firm's Internet Site Be Accessible to the Persons with Disabilities
  • The Americans with Disabilities Act and Employment
  • The Ins and Outs of Nevada’s Service Animal Laws
  • The Legal Universe of Internet Accessibility and What You Can Do about It
  • What is the statute of limitations for ADA claims

Blogroll

  • architectural accessibility
  • disability law blogspot
  • FMLA Insights Blog
  • labor and employment law blog (management)
  • Lawffice Space Blog
  • management employment law blog (California based firm)
  • Ohio Employment lawyer blog (Jonathan Hyman-management)
  • PLAINTIFF California labor and employment law blog
  • plaintiff employment law blog
  • Robin Shea's employment and labor law insider blog (management-Constangy, Brooks & Prophete)
  • Second Circuit civil rights cases
  • state sovereign immunity in Scotus blog
  • The blog for Supreme Court goings on
  • The employer handbook blog
  • Title III and Fair Housing Act Blog (defense)
  • Title III and II ADA blog
  • Title III blog business side (Seyfarth Shaw)
  • Workplace safety and health law blog

Greatest Hits

  • ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next
  • ADA and the Applicable Statute of Limitations
  • ADA compliance auditing for higher education
  • ADA Compliance Is a Nondelegable Duty
  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
  • Can You Get Compensatory and Punitive Damages When Alleging Retaliation
  • Just When Does the Statute of Limitations BEGIN to Run in ADA Cases
  • Service dog v. Emotional support animal
  • Suing state court system for title II violations
  • Temporary disabilities and the ADA
  • What do you have to show to get compensatory damages under title II of the ADA
  • What does it mean to exhaust administrative remedies under title I of the ADA?
  • Why a recent US Supreme Court opinion is a huge victory for title I plaintiffs (mixed motive)

In the Media

  • ABA Blawg 100 2014
  • ADA and ADR
  • ADA Game Changer: CRST Van Expedited v. EEOC
  • ADA Litigation Game Changer
  • Auer Deference blog entry in SCOTUS blog
  • Blog entry discussing oral argument in Bostock, Zarda, and Stephens referenced in SCOTUS blog
  • Blog entry on Impact of University of Texas Southwestern Medical Center v. Nassar on the ADA
  • Blog entry on Judge Gorsuch on Disability Rights Linked to by SCOTUS Blog
  • Blog entry on Sheehan v. City and County of San Francisco
  • CBS money watch article discussing website accessibility litigation.
  • CRST Van Epedited blog entry referenced in over lawyered
  • Death Penalty and Intellectual Disabilities Supreme Court Opinion
  • Disability compliance for higher education interview on why colleges and universities should perform ADA compliance audits
  • Does title IIof the ADA/§ 504 of the Rehabilitation Act applied to employment
  • E-bay's Inaccessibility to the Deaf
  • EEOC affirmative action per § 501 blog entry referenced in March 2016 employment Law blog carnival
  • Employment Law Blog Carnival November 2015
  • Expert Interview Series: ADA Consultant William Goren on What You Need to Know About ADA Compliance
  • February 2016 employment Law blog carnival
  • Finding creative solutions within the law
  • Fisher II blog entry referenced in Scotus Blog
  • Fry oral argument blog entry referenced in Scotus Blog
  • Guest Post on Illinois Business Litigator Blog regarding My Burden of Proof When Dealing with Remediation Blog Entry
  • How Fry playing out blog entry referenced by Scotus blog
  • How the legal industry lets down lawyers with disabilities
  • Illinois business litigator blog featuring my blog entry discussing whether a corporation has a retaliation cause of action under the ADA
  • Impact of Abercrombie and Fitch Decision on the ADA
  • Interstate sovereign immunity in SCOTUS blog
  • Is the Texas House violating the ADA by refusing CART
  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
  • Law practice today members spotlight
  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
  • PBS News Hour piece discussing accessibility of amusement parks for persons with disabilities
  • Reflections on the development of disability as a diversity concern in the legal profession
  • SCOTUS blog references Blog entry discussing the impact of South Dakota v. Wayfair on Internet accessibility litigation
  • SCOTUS blog references Endrew oral argument blog entry
  • SCOTUS Blog references Fry decided blog entry
  • SCOTUS Blog referencing blog entry that Reviews Supreme Court cases and the upcoming Supreme Court cases vis a vis the ADA/disability rights
  • Sevorson decision analyzed
  • Sheehan decision
  • Supreme Court on Auer Deference blog entry in SCOTUS blog
  • The Physics (and Economics, and Politics) of Wheelchairs on Planes
  • Trimble v. Kroger
  • Voyage Atlanta Profile
  • What's wrong with this job description blog entry featured in December 2015 employment Law blog carnival
  • When to grant more leave after FMLA is exhausted
  • Why ADA is a Good Law

Presentations of interest

  • ADA “Accessible” Websites: What Attorneys Need to Know
  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

Footer

Powered by WordPress and the Utility Pro theme for Genesis Framework.