Understanding the ADA

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

places of public accommodation

Intent to Return

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Hope everyone had a great Thanksgiving week and did not have too hard of a time getting the kids back to school.

 

Today’s blog entry is going to discuss a couple of cases dealing with standing. In the first, we will discuss standing with respect to physical stores. In the second, we will discuss standing with respect to a physical place accessed only through the Internet. My colleague, Richard Hunt, blogs on these issues all the time. It is not unheard of for me to blog on them either. The reason I want to blog on these two cases discussing is because these two cases show that courts and judges may be beginning to resist a broad notion of what standing is.

 

As I mentioned in another blog entry of mine, the California Supreme Court came down with a decision that was likely to blow the lid off Internet accessibility litigation in California. We are already seeing that happen as seen in this case, Thurston v. Midvale Corporation, for example.

As usual, the blog entry will be divided into categories and they are: Mosley v. Kohl’s Department Stores, Inc. facts; Mosley’s majority reasoning; Mosley’s dissent by Judge McKeague; Mosley takeaways/thoughts; Castillo v. The Jon Gore Organization Inc. facts; Castillo court’s reasoning; and Castillo takeaways/thoughts. Of course, the reader is free to focus on any or all of the categories.

 

I

Mosley v. Kohl’s Department Stores, Inc. Facts

 

In April 2018, plaintiff visited Kohl’s stores in Northville and Nuvi Michigan and encountered architectural barriers to access in each of the restrooms, including: inaccessible doors; improperly spaced grab bars; and sinks, mirrors, and toilet paper dispensers that were too high. Plaintiff has filed similar lawsuits throughout the country. Plaintiff is a resident of Arizona and has family and friends residing in the Detroit area he tries to visit at least annually in the summer. At the time of filing his amended complaint, plaintiff, a career musician, had scheduled upcoming visits to Flint and to other areas in southeast Michigan in September and October of 2018 to perform and attend shows at various places. He was also planning to visit his family in Detroit on November 11, 2018. Finally, he stated he would return to the two stores if they were modified to be ADA compliant.

 

II

Mosley’s Majority Court Reasoning

 

  1. An injury is concrete and particularized where the plaintiff alleges that he personally observed and encountered architectural barriers to access and those barriers interfere with a mobility impaired individual’s full and equal enjoyment of the property.
  2. An ADA tester does not deprive a person of standing, assuming that plaintiff is such an individual, because title III of the ADA guarantees the right to be free from disability discrimination and enjoyment of the facility regardless of plaintiff’s motive for visiting the facility.
  3. If testers were not meant to have standing to challenge discrimination, Congress could have set up the statute to limit its protection to clients or customers as it did another provisions of title III of the ADA. It also could have imposed a bona fide usage requirement akin to the bona fide offer requirement for housing discrimination suits. Congress did not do either.
  4. When it comes to intent to return, the question is whether the plaintiff intends to return to the geographic area where the accommodation is located and has a desire to visit the accommodation if it were made accessible. So, once a plaintiff establishes both more than a someday intent to return to the geographic area and an interest in the accommodation, an intent to return to the accommodation can be inferred.
  5. Citing to PGA Tour, Inc. v. Martin, the court said requiring a plaintiff to provide a definitive plan for returning to the accommodation itself would frustrate the ADA’s aim of integrating individuals with disabilities into the economic and social mainstream of American life. If this wasn’t the case, plaintiffs would have more success bringing title III actions against accommodations that are booked for travel, such as hotels, then for accommodation they spontaneously choose to enjoy, such as markets and stores.
  6. Persons with disabilities are entitled to full and equal access to all public accommodations wherever they may be and any point in time.
  7. Although the Constitution requires plaintiff to show a real and immediate threat of future injury, it doesn’t require plaintiff to allege such specifics as the precise dates, arrangements for the return to the accommodation, and the reason for returning.
  8. It is enough to allege an intent to return to the area and an interest in visiting the accommodation in the future when it becomes ADA compliant. That is, while the plaintiff must show more than a someday intent to return to the accommodation, frequent visits and concrete plans to return to geographic area support a plausible inference of intent to return to the accommodation.
  9. Plaintiff are not required to have visited the place of accommodation more than once and that flouts title III’s requirement that plaintiffs not be asked to engage in a futile gesture once they have actual notice of the barrier access.
  10. Title III of the ADA does not require persons with disabilities to subject themselves to repeated instances of discrimination in order to invoke its remedial framework.
  11. Plaintiff suffers an injury once he or she becomes aware of the discriminatory conditions existing at a place of public accommodation and thereby deterred from visiting that place of public accommodation.
  12. While the plaintiff lives in Arizona, he has family and friends in the Detroit area whom he tries to visit at least annually in the summer. In fact, he had scheduled visits already.

 

III

Mosley Dissent by Judge McKeague

 

  1. “Who plans on going to a suburban Kohl’s on a trip to Detroit?”
  2. The majority’s view of standing is better termed, “discount standing.” “While 20% off works for Kohl’s, it doesn’t work for the Constitution.”
  3. Courts generally consider three factors with respect to intent to return: 1) the distance between the plaintiff’s residence and the accommodation; 2) the frequency of the plaintiff’s past visits both to the area where the accommodation is located and to the accommodation itself; and 3) the definiteness of the plaintiff’s plans to return to the accommodation in the future, including reasons for making the return trip and visiting the place of public accommodation.
  4. Plaintiff lived nearly 2000 miles away from the stores complained of.
  5. Plaintiff visited the stores only once in the past. While it is true that a plaintiff is required to make repeat visits, the fact that he has made infrequent past visits cuts against the plausibility of claiming prospective injury.
  6. While plaintiff alleged he planned to return the Detroit area in the future, his allegations do not plausibly suggest that plaintiff would return specifically to the specific stores alleged in the complaint. Such an allegation is a legal conclusion even if it looks like a factual allegation. More facts are needed. For example, plaintiff doesn’t allege any facts explaining his desire to return to those Kohl’s stores. That is, an intent to return to an accommodation is plausible when a plaintiff explains why he wants to return and he did not do so in this case.
  7. Plaintiff never alleges an interest in Kohl’s specifically. He doesn’t allege that he likes to shop there for reasonably priced clothing. He also doesn’t allege why he prefers Kohl’s over Target or T.J. Maxx or Marshalls or other similar retailers with a large presence in southeast Michigan. In fact, plaintiff fails to allege a reason for going to Kohl’s at all.
  8. Plaintiff doesn’t allege why he wants to return to those specific stores. For example, are those stores near stores he otherwise frequents? Do those stories have excellent customer service? Plaintiff simply doesn’t say one way or the other.
  9. Majority opinion doesn’t address all the other Kohl’s location closer to Detroit, the airport, and major roads like I-75 and US 23. Why would plaintiff bypass them all to go to the particular stores alleged in the complaint? While it is conceivable that he would do so, that isn’t enough. It has to be plausible.
  10. If it is convenience plaintiff is after, there are 18 Kohl’s Department stores in his home county in Arizona.
  11. Plaintiff has filed over 180 ADA lawsuits, most of them in Arizona, but a handful in Colorado and four in Michigan. If he alleged tester motivation, it might make it more plausible that the plaintiff would return to the particular stores alleged in the complaint. However, he doesn’t make any allegations that he intends to return to those particular stores to test their ADA compliance.
  12. Judge McKeague simply doesn’t buy the majority test that an intent to return can be inferred once a plaintiff has established more than a someday intent to return to the geographic area and an interest in the place of accommodation. Judge McKeague believes that such an analysis contradicts a couple of different United States Supreme Court opinions.

 

IV

Mosley Takeaways/Thoughts

 

  1. The Mosley majority adopts a deterrence standard.
  2. The Mosley majority states that testers have standing.
  3. The decision is recommended for publication.
  4. Considering the current configuration of the United States Supreme Court, I think the dissenting opinion will get a very receptive review by the United States Supreme Court should there be an appeal to the United States Supreme Court. I wonder if an en banc rehearing won’t be sought first.
  5. Judge McKeague’s opinion in terms of its writing style almost reads like a Justice Gorsuch opinion. Justice Gorsuch is not afraid to use common sense when deciding his cases.
  6. The dissent provides a very useful roadmap to plaintiff attorneys as to how they may configure their complaint to get around the concerns that the dissent raises.

 

V

Castillo v. John Gore Organization, Inc. Facts Taken Directly from the Opinion

 

In or around December 2018, from Kings County, New York—where she resides—the plaintiff visited the defendant’s website because she “intended to buy tickets to attend” a “concert” there. However, the plaintiff “did not book a ticket” after seeing on the defendant’s website that the defendant had a policy prohibiting patrons from bringing outside food into the theater. Because she has diabetes, the plaintiff must have specific types of snacks with her at all times, as her blood sugar can drop suddenly, and she must immediately eat an appropriate food item to stabilize it. Thus, the defendant’s policy banning outside food from its theater deterred the plaintiff from visiting the theater. The defendant notes that the performance that the plaintiff alleges she intended to see was a play and not a concert.

 

The plaintiff claims that she “intends to take advantage of the facilities offered by Defendant in the future once the access barriers are remedied” and that she “intends to attend a similar event at the [theater] as soon as Defendant fixes its discriminatory policies.” However, she does not claim that she has ever visited the defendant’s theater—or Boston—in the past. In fact, she claims that she “did not attempt to attend an event” at the theater “because she understood Defendant’s discriminatory policy and knew that such an attempt would be futile.”

 

According to the defendant, in December 2018, its website’s homepage contained an “accessibility” policy that invited visitors to contact the theater about any accessibility concerns. Spry Decl. Specifically, that policy stated that “[t]he Charles Playhouse is accessible to all patrons. Guests with accessibility questions or who require additional assistance may email the Playhouse directly . . . or call the House Manager . . . .” It also provided an email address and phone number for such accessibility questions or requests. See id. It further provided more specific accessibility information for wheelchair users and individuals with visual impairments. See id. The website’s homepage also contained a “code of conduct” that included a policy prohibiting “outside food or beverage[.]”All of the website’s homepage content—including the accessibility policy and the code of conduct—appeared on one page. Spry Decl. The defendant sequenced its website content such that before reaching the policy prohibiting outside food, a website user must have first scrolled past the theater’s accessibility policy. Between December 2018 and at least September 2019, when the defendant’s employee David Spry submitted the latest declaration in connection with this case, “the substantive content, language and sequencing of all relevant portions” of the defendant’s website “have remained the same,” although the defendant migrated its website to a new platform for aesthetic reasons in March 2019.

The plaintiff claims that when she accessed the defendant’s website in or around December 2018, she encountered the portion of the website prohibiting outside food, but she does not claim to have contacted the theater to ask a question about accessibility or to request assistance.

Plaintiff then filed suit in January 2019 bringing her claims as a class-action and seeking injunctive and declaratory relief as well a compensatory damages under both the ADA and related New York State and City llaws. Defendant moved to dismiss for lack of standing and for failure to state a claim.

 

VI

Castillo Court’s Reasoning

 

  1. In order for standing to exist, three criteria must be met in the Second Circuit: 1) the plaintiff alleged a past injury under the ADA; 2) it was reasonable to infer that the discriminatory treatment would continue; and 3) it was reasonable to infer based upon the past frequency of plaintiff’s business and the proximity of defendant to plaintiff’s home, that plaintiff intended to return to the subject location.
  2. If a plaintiff has not personally encountered a barrier to access, she nevertheless suffers an injury if she has actual knowledge of the barrier complained of and has been deterred from visiting the public accommodation because of that barrier.
  3. A plaintiff has to at least prove actual knowledge of the barriers and show that he or she would visit the building in the imminent future but for those barriers.
  4. An injury has to be imminent rather than conjectural or hypothetical.
  5. In assessing imminence, one looks at the likelihood of return (we often see it in the case law as intent to return). Four factors are used when analyzing intent to return and they are: 1) the proximity of the place of public accommodation to plaintiff’s residence; 2) plaintiff’s past patronage of defendant’s business; 3) the definiteness of the plaintiff’s plan to return; and 4) the plaintiff’s frequency of travel near the defendant.
  6. A plaintiff has to support each element of standing in the same way as any other matter on which he or she bears the burden of proof.
  7. Plaintiff does not allege that she ever visited the theater or that the defendant physically barred her from entering. So, the only injury that plaintiff could have suffered was deterrence.
  8. While deterrence can get you standing, the plaintiff still has to have actual knowledge of a barrier to access.
  9. In December 2018, the theater’s website homepage content appeared on one page. The homepage was set up in such a way so that before even reaching the theater’s policy prohibiting outside food or beverage, a website user had to have first scrolled past the theater’s accessibility policy. That policy stated that the theater was accessible to all patrons. Further, guests with accessibility question requiring additional assistance could email the Playhouse directly or call the house manager. Finally, it also provided an email address and phone number for such accessibility questions or requests.
  10. The plaintiff made no claim that she contacted the theater as the defendant’s website invited her to do and that she was then denied permission to bring in outside food. Accordingly, she could not have had actual knowledge that the defendant’s outside food prohibition would bar her access to the theater as the defendant’s website made it abundantly clear there was at least a possibility of obtaining an accommodation.
  11. At the time plaintiff filed her complaint in January 2019, it was not reasonable to infer that any alleged discriminatory treatment would continue as content, language and sequencing of all relevant portions of the website remained the same. As such, the more reasonable inference to be drawn is that any discrimination inflicted by the outside food prohibition would disappear once the defendant received and responded to a request for reasonable accommodation.
  12. A broad allegation of intent to return or visit is not sufficient. Plaintiff has not alleged that she made any past visits to the theater. She also did not state that she had attempted to attend an event at the defendant’s theater in the past but did not do so because of the discriminatory policy and that such an attempt would be futile.
  13. The theater is nowhere near plaintiff’s home as she resides in King County, New York and the theater is in Boston.
  14. Plaintiff’s allegation that she intends to attend a similar event at the theater in the future is vague and not definitive. In fact, plaintiff made no allegation that she ever traveled to the area near where the theater is located.
  15. Claims under the State and City laws fail for the same reasons.

 

VII

Castillo Takeaway/Thoughts

 

  1. Castillo clearly represents a pushback on a broad notion of standing.
  2. If you are a physical place of public accommodation, an accessibility policy is a really good idea.
  3. If you have an accessibility policy, this decision requires a plaintiff to take advantage of it before they could be found to have standing.
  4. Not said in this opinion is that your Internet site should be meaningfully accessible to persons with disabilities.
  5. Judge Ross in many ways is taking a very similar approach to Judge McKeague when it comes to standing. So, on the plaintiff side, the more specifics you have, the better off you will be. On the defense side, a lack of specifics by plaintiff in the complaint could prove very helpful in getting the case dismissed.
  6. Castillo did not involve an Internet only place of public accommodation.

Internet as a Place of Public Accommodation and Standing

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As I have mentioned previously, I am not afraid to blog on cases blogged on by others. Today, is such a situation. Richard Hunt in his Access Defense blog, which you can find in my blogroll, has blogged on a couple of cases recently, and I thought that I could add my own perspective to them. I will also throw in a third case as well in the process.

The topic for this week is website accessibility both in terms of standing and in terms of whether Internet only businesses are subject to title III of the ADA at all. The cases we will be discussing are: Carrolll v. Northwest Federal Credit Union from the Eastern District of Virginia; Del-Orden v. Bonobos Inc.  from the Southern District of New York; and Nanni v. Aberdeen Marketplace Inc, from the Fourth Circuit. As usual, the blog is divided into categories and they are: Carroll; Not so Fast Says Nanni v. Aberdeen Marketplace Inc.; Not so Fast Says Del-Orden v. Bonobos Inc.; and takeaways. The reader is free to read any or all of the categories, but probably will want to read the whole thing since all the categories are interrelated.

I

Carroll

Carroll is a serial plaintiff who went after the Northwest Federal Credit Union when he found out that the website was not accessible to the blind and visually impaired. Northwest Federal Credit Union is a credit union chartered by the federal government whose membership is current or former employees of the Central Intelligence Agency or their immediate family or household members. Plaintiff is not included in that membership field nor did he allege any facts in his complaint suggesting he is a CIA agent or otherwise eligible to become a member of the credit union.

The court reasoned that any planned visit to the website in the future was immaterial unless the plaintiff could show that he was eligible to use the services offered on that website. Since the defendant could not demonstrate he was entitled to participate in any of the services, he could not show any redressable injury. Accordingly, he did not have standing to pursue the case.

The court also reasoned that a website cannot be a place of public accommodation because in the list of public accommodations, websites are not included. Further, the court said that not only are websites not found on the list, but the statute only lists brick-and-mortar places. Finally, Congress has amended the ADA, and at no point, did they choose to add websites as a public accommodation.

II

Not so Fast Says Nanni v. Aberdeen Marketplace Inc.

Carroll’s standing discussion arguably is saying that a tester cannot have standing. If that is the argument, the Fourth Circuit, which is the same Circuit that Carroll would be appealed to, may well have a different take on it. In Nanni, the Fourth Circuit held that a person’s status as an ADA tester- and for that matter, his litigation history as well-, does not strip a person of standing to sue. According to the Fourth Circuit, a citizen’s right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and is granted and protected by the federal Constitution. So, a person’s motivation for pursuing ADA claims does not deprive him or her standing to sue.

 

III

Not so Fast Says Del-Orden v. Bonobos Inc.

Del-Orden is the tour de force as to why Carroll arguably gets it wrong with respect to the public accommodation piece and that analysis, taken from Del-Orden, goes as follows:

  1. Carroll is simply wrong when it says that ALL of the places listed in 42 U.S.C. §12181(7) our strictly physical spaces. 42 U.S.C. §12181(7)(F) specifically lists travel services among the services defined as public accommodations and travel services have never required the existence of a physical structure for the services to be utilized.
  2. Congress intended that the ADA be read broadly in light of its remedial aims and that it be construed to keep pace with changing technology. Accordingly, the term “other sales or rental establishment,” can be fairly read in today’s world dominated by e-commerce to include a commercial website and therefore, has a textual basis in the statute.
  3. Congress’s purpose in enacting the ADA was broad. That is, to remedy widespread discrimination against individuals with disabilities.
  4. Congress found physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities are precluded from doing so because of discrimination.
  5. Congress found that historically, society intended to isolate and segregate persons with disabilities, and, despite some improvement, the discrimination against individuals with disabilities continues to be a serious and pervasive social problem.
  6. After thoroughly investigating the problem, Congress concluded that there was a compelling need for a clear and comprehensive national mandate to eliminate discrimination against individuals with disabilities and to integrate them into the economic and social mainstream of American life.
  7. Congress’s purposes in adopting the ADA would be frustrated if the term public accommodation was given a narrow application where access to the vast world of Internet commerce falls outside the statute’s protection. Today, few areas are more integral to the economic and social mainstream of American life than Internet websites.
  8. Computers and Internet access have become virtually indispensable in the modern world of communications and information gathering.
  9. A House Committee Report specifically stated that the types of accommodation and services provided to individuals with disabilities under all titles of the bill should keep pace with the rapidly changing technology of the times.
  10. Limiting title III’s scope to brick-and-mortar venues would be inconsistent with Congress’s intention that the ADA keep pace with rapidly changing technology of the times. Such a holding renders title III effectively impotent to broad swaths of social and economic life. That would be a result contrary to the broad remedial purpose of the ADA, which has been described as a milestone on the path to a more decent, tolerant, progressive society.
  11. Congress need not perpetually refresh and update legislation where a broad but textually fair construction achieves the statute’s explicit aims, which is the providing of a comprehensive national mandate for the elimination of discrimination against individuals with disabilities. Accordingly, the ADA must be read, like other broadly worded statutes, in a way reflecting an intentional effort to give the flexibility necessary to forestall obsolescence.

 

IV

Thoughts and Takeaways:

  1. Del-Orden also has a couple of other points well worth mentioning. First, it also adopted the gateway theory. In particular, it noted that the ADA prohibits an owner or operator of such a place from discriminating in the provision of the goods or services of that place of public accommodation. It is “of’ and not “at” or “in” that is the critical distinction. The two terms simply do not mean the same thing and to suggest otherwise does not make much sense. There is no indication that Congress intended such unorthodoxy. Further, it makes little sense to limit title III’s goal to discrimination in the provision of goods or services literally consumed in a place of public accommodation.
  2. Del-Orden also says that when it comes to mootness, the case still continues if what has not been fixed with respect to the website still denies a person with a disability meaningful access to that website.
  3. It is clear in the Fourth Circuit that testers have standing. What is not clear is whether the tester must also be capable of using the premises or the website. On that, there may be some room for argument with respect to the Northwest Federal Credit Union. Of course, different story if the plaintiff is someone eligible for the Northwest Federal Credit Union.
  4. It is absolutely true that Congress did not factor the Internet into the ADA when it was amended. It is possible that was unintentional or it is possible the votes were not there. The lack of the Internet being added to the ADA when the ADA was amended is the best argument against places of public accommodation being Internet only sites. On the other hand, you do have the congressional report that says the ADA is meant to evolve with technology. You also have the fact that the Internet has come to dominate society and that the ADA is very much about integration of people with disabilities into mainstream society. In today’s world that would be a very difficult thing to do if the Internet is left outside of the equation. Further, there are many good policy reasons, discussed above, why the ADA should be construed broadly so as to allow Internet only sites or sites that are gateways to brick-and-mortar stores to be considered a place of public accommodation.
  5. If you are a trade association or a credit union and your website is not accessible, Carroll may give you some flexibility as to cutting down on the number of people that might have standing to sue you. Keep in mind, all you are doing is cutting down on the number of people likely to sue because this case would not prevent a person who could be a member and who cannot access the website from suing under title III of the ADA. Also, this is just one court, the Eastern District of Virginia, and may not be persuasive in other courts. Finally, there is the argument that testers do have standing to sue under the ADA just as they do under the Fair Housing Act.
  6. Predicting the Supreme Court is impossible (a case like this will definitely make it to the Supreme Court someday), but if I were a plaintiff, I would take my chances with respect to tester standing and the Internet being a place of public accommodation. As discussed and mentioned numerous times before, persons with disabilities have fared very well at the Supreme Court outside of the employment context (speaking of which, the plaintiffs in Sevorson have requested cert.). It isn’t clear to me whether in the unusual fact pattern of Northwest Federal Credit Union whether the tester counter argument will prevail. Even so, all it would take would be for a person with a disability who is eligible for that particular website’s services to sue in order to get around that problem. Considering that this federal credit union focuses on the CIA and that a person in the CIA could get injured, it seems only a matter of time before someone who could be a member of this website will sue because he or she could not meaningfully access the website. So, failing to fix the website probably only delays the inevitable.
  7. In light of ¶ 6 and the Fourth Circuit becoming more progressive toward persons with disabilities, an appeal might be in order. Also, as we discussed here, the Department of Justice has recently written that it is very receptive to Internet only sites being considered places of public accommodations.
  8. It is always better to design websites with accessibility in mind before they go live, rather than do it later. Consider having your website tested by persons with disabilities. Also, make sure the website is meaningfully accessible to persons with multiple disabilities.

Sovereign Immunity in the Absence of Constitutional Violations

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The capitol Building
Legislative Branch

 

After a two-month period, where my computer was completely on the fritz, I may have finally fixed it. It turns out that Windows itself had become corrupted and that it needed to reinstall Windows. Once I did, that fixed the problem. You wouldn’t believe what I went through before I finally got to that point. Nevertheless, things are good to go, and I couldn’t be more excited. Next week is Thanksgiving week, and I will be in Chicago doing the family thing. So, I will be taking the week off. Accordingly, this is going to be my last blog entry for the next couple of weeks until the week after Thanksgiving. I do want to wish everybody a happy Thanksgiving and safe travels if you are traveling.

 

Today’s case came to me from Larry Berger, a member of the deaf and hard of hearing Bar Association. If you are a deaf/Deaf/hard of hearing attorney, I highly recommend the Association. It turns out that the attorney for the plaintiff is someone that I know and am quite familiar with her work, Mary Vargas of Stein and Vargas. She was kind enough to send me the decision since I could not find it on Lexis or Google scholar. Congratulations to Mary! The case is Reininger v. State of Oklahoma (CIV-16-1241-D) decided by the Western District of Oklahoma on November 9, 2017. As is usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts:

The facts are pretty straightforward. The plaintiff is deaf and tracks the status of state legislative bills, particularly ones affecting persons with disabilities. The Oklahoma State Senate, the Oklahoma House of Representatives, and their respective leaders maintain Internet websites showing live feeds of legislative hearings and proceedings. Plaintiff claimed that he did not have meaningful access to this information because the audio content of the online broadcasts is not captioned, and so he cannot understand what is being said. He contacted both legislative bodies about the lack of captioning and asked them to bring the websites into compliance with federal disability discrimination laws. While apparently noncompliance was admitted, captioning was not provided due to budgetary constraints. Allegedly captioning would be cost prohibitive and technologically difficult. As an alternative, interpretive services were offered to the plaintiff if the plaintiff were to give advance notice that he wanted to attend a proceeding. Plaintiff then brought suit alleging violations of title II of the ADA and §504 to Rehabilitation Act and sought declaratory judgment, compensatory damages, and injunctive relief. Defendants defended on the grounds of sovereign immunity under the 11th amendment and also defended under the 10th amendment as well.

II

Court’s Reasoning

In rejecting the defendants 11th and 10th amendment claims, the court reasoned as follows:

  1. No doubt exists that Congress intended to waive sovereign immunity of the States regardless of their consent when it came to the ADA. So, the only question is whether that waiver is consistent with the enforcement clause of the 14th
  2. When it comes to title II and sovereign immunity, three questions must be addressed at the outset: 1) what aspect of the State’s alleged conduct violated title II; 2) to what extent such misconduct also violated the 14th amendment; and 3) if the misconduct violated title II but not the 14th amendment, whether Congress’s purported abrogation of sovereign immunity with respect to that class of conduct is nevertheless valid.
  3. The particular conduct alleged in the complaint was failure to caption streaming video of legislative sessions.
  4. Plaintiff did not allege a violation of the 14th amendment in his complaint.
  5. Once the initial questions with respect to sovereign immunity, mentioned above, are addressed, three other questions have to be considered in order to assess whether the legislation is consistent with the enforcement clause of the 14th amendment and they are: 1) the nature of the constitutional right at issue; 2) the extent to which Congress’s remedial statute was passed in response to a document history of relevant constitutional violations; and 3) whether the Congressional statute is congruent and proportional to the specific class of violations at issue given the nature of the relevant constitutional right and the identified history of violations.
  6. The overarching issue here is the citizen’s right to participate in the political process and to have meaningful access to the tools necessary for such participation.
  7. The fundamental right of access to the courts and participation in court services is analogous to the right to participate in the political process impaired by a lack of access to legislative statements by elected representatives. Physical access to a public forum doesn’t mean anything if the person with the disability is denied access to publicly available information that allows equal participation in the political process.
  8. The right to engage in the political process equally to others is encompassed in the First Amendment right to petition the government for redress of grievances. If a citizen cannot access information about the legislative positions of his or her representative, then the citizen’s ability to adequately petition the government and participate in the political process is severely impaired.
  9. The United States Supreme Court has recognized a First Amendment right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences through broadcast media. Any restrictions on the broadcasting industry has been for the purpose of securing the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. By analogy, the same thing applies to the Oklahoma legislature when they are engaged in Internet broadcasting of proceedings to the public, thereby, creating an analogous right of access to the information about state legislative matters.
  10. The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process is a fundamental right and therefore, subject to heightened scrutiny.
  11. A historical record and pattern of constitutional violations existed when it came to enacting title II of the ADA. In particular, discrimination against individuals with hearing loss was explicitly mentioned in a variety of different contexts.
  12. While the ADA does not have a requirement for legislative proceeding to be broadcasted, it does require that a qualified individual with a disability be afforded equal participation and benefits of the services, programs, or activities of a public entity. That was necessary because of discrimination against persons with disabilities persisting in such areas of public accommodation, education, transportation, communication, recreation, voting and access to public services. Here, plaintiff is clearly a qualified person with a disability and legislative proceedings are activities of a public entity with the Internet broadcast of those proceedings being a public service.
  13. In a footnote, the court noted that public accommodations may not be limited to buildings and physical structures, but also noted that courts have gone both ways on the matter.
  14. Since a fundamental right is involved, title II of the ADA is a proportional response to the harm being redressed, and especially so, since title II allows public entity to assert affirmative defenses of undue burden and fundamental alteration so that required accommodations are not overly burdensome.
  15. In a footnote, the court said that even if a citizen’s right to meaningful participation in the political process and to access publicly available information needed to participate in that process was not a fundamental right, sovereign immunity was still properly waived because of pervasive unconstitutional state conduct. That is, you also have here: 1) a persistent pattern of exclusion and irrational treatment of persons with disabilities; 2) gravity of harm from such discrimination; and 3) limited compliance costs.
  16. Finally, the court found that any 10th amendment claim was premature as that went to the relief to be granted rather than whether the case could go forward.

IV

Takeaways:

  1. I have seen over and over again defendants claim that sovereign immunity applies unless a constitutional violation is alleged. That is simply not the law, and this case makes that point clear.
  2. This court does a nice job of laying out the analytical framework for dealing with sovereign immunity questions. It is a two-step process with six different questions.
  3. The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process are fundamental rights.
  4. The way sovereign immunity works, as we have discussed previously, is once the equal protection category is determined, the rest of the analysis follows without difficulty. Here, since a fundamental right was found, that means a law could require just about anything and it will be a proportionate response to the harm being redressed.
  5. Very interesting that the court in a footnote saw fit to mention that places of public accommodations very well may extend beyond buildings and physical structures, a point which we have discussed extensively in the blog.
  6. The court also left itself an out if somehow a fundamental right was not found to be by saying that the plaintiff could also win under the pervasive unconstitutional state conduct theory.
  7. I have never seen a 10th amendment claim before. The court doesn’t rule it out, but says that it is premature at the pleading stage.
  8. This case should be a wake-up call for public and even private entities using live video, but not captioning them. It’s a real problem. Just within the last month, I have run into this issue with respect to three webinars that I either eventually attended or wanted to attend. No, I didn’t do anything legally but I could have….

HAPPY THANKSGIVING!