fundamental alteration

I missed a blog entry last week. However, I had a good excuse. I had pressing client matters at the beginning of the week. In the middle of the week, my parents came in to visit. So, not a lot of available time. I’m back though.

 

Previously, I have blogged, here, on the District Court decision involving a Deaf plaintiff going after the State of Florida because the State of Florida’s live streaming did not have closed captioning. In particular, the Florida Senate and the Florida House have websites providing live streaming of proceedings as well as archived footage of past proceedings. Those videos show the legislature receiving information, statements from the public, debating, negotiating, and voting on a host of issues. In 2017, letters were sent to the Florida Senate and to the Florida House requesting captioning for those videos. The Florida House and the Florida Senate never responded to the letters. As usual the blog entry is divided into categories and they are court’s reasoning and takeaways. The reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning

 

1. Forcible waiver of sovereign immunity by Congress comes down to two questions. First, does the legislation contain an explicit waiver of 11^th amendment immunity. Second, if the legislation does contain such a waiver, is that legislation congruent and proportional between the injury to be prevented or remedied and the means adapted to that end.
2. In a footnote, the court noted that the United States Supreme Court held in United States v. Georgia that if a constitutional violation is involved in addition to a title II violation, then Congress’s forcible waiver of the 11^th amendment sovereign immunity is automatically valid. If only a title II violation is involved and not a constitutional violation, then the analysis gets more complicated.
3. Figuring out whether Congress’s waiver of sovereign immunity is congruent and proportional involves asking: 1) what right or rights Congress sought to enforce when it enacted the ADA; 2) was there a history of unconstitutional discrimination to support Congress’s determination that such legislation was necessary; and 3) was title II an appropriate response to the history and pattern of unequal treatment. It
4. Congress enacted title II of the ADA in order to enforce the 14^th amendment’s prohibition on irrational disability discrimination and on a variety of other basic constitutional guarantees. The former is subject to rational basis review and the latter is subject to a higher level review.
5. The right claimed by the plaintiff is the right to participate in the democratic process, which is a foundational right as any other.
6. Without access to information about the legislative actions of their representative, deaf citizen cannot adequately petition the government for redress of grievances because they cannot get the information necessary to hold the elected officials accountable for legislative acts.
7. Being unable to get information about legislative actions of representatives is exactly the type of participation in the political process going to the very core the political system embodied in the Constitution. To say no fundamental right is at issue denies the underpinnings of our Democratic Republic.
8. What plaintiff is seeking here is to access information about legislative proceedings that Florida already discloses to hearing members of the public. While hearing members of the public can comprehend such information and engage with their elected representatives on the basis of that information, deaf and hard of hearing Floridian cannot do so.
9. Florida also loses even if a fundamental right is not involved because previously the 11^th Circuit has held (the case found for a forcible waiver of sovereign immunity with respect to places of higher education), that a forcible waiver of sovereign immunity applies where the right is vital to the future success of our society. That is, denying access to legislative streaming to deaf individuals and hard of hearing individuals affects their future ability to exercise and participate in the most basic rights and responsibilities of citizenship, such as voting and participation in public programs and services.
10. It is simply implausible that Congress could validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but could not do the same with respect to students participating in the democratic process.
11. One of the reasons the 11^th Circuit found for forcible waiver of sovereign immunity with respect to places of higher education was that education empowered people with disabilities with the ability to participate in the democratic process. Defendants offered no plausible reason as to why that particular case, found here, was wrongly decided or that its reasoning should not apply.
12. The Supreme Court has previously recognized that a documented pattern of unequal treatment in the administration of services, programs, and activities, including voting existed. That statement from the Supreme Court is sufficient to find a history of unconstitutional discrimination for purposes of a forcible waiver of sovereign immunity.
13. Title II of the ADA is a congruent and proportional response to the right being alleged because title II only requires reasonable modifications to program, services, and activities with respect to discrimination based upon disability. It also allows for defenses, such as undue burden and fundamental alteration.
14. Adding captioning to legislative videos already provided to the public removes a complete barrier to that information for a subset of citizens with a remedy that can be accomplished with limited cost and effort. Accordingly, that remedy is both proportionate and a reasonable modification of the service already provided and does not change the nature of the service whatsoever. If for some reason the costs or effort wind up being unduly burdensome, the State of Florida has those affirmative defenses available to it under title II of the ADA.
15. When Congress enacted title II, it was confronted with evidence that deaf people often cannot access governmental meetings either because of a lack of interpreters or other necessary accessibility features.
16. Plaintiffs get to be able to seek declaratory and prospective injunctive relief against state officials in their official capacity for their ongoing violation of title II because they are seeking an injunction based upon violations of the ADA.
17. In a footnote, the court noted that the plaintiff were seeking equal access to information for which hearing individuals already have. They further noted in that same footnote, that the purpose of the ADA was to place persons with disabilities on an equal footing and not to give them an unfair advantage. Here, plaintiffs are merely seeking equal footing with the rest of the hearing public. So, even if the Florida House and the Florida Senate would choose to remove the links altogether, they still must comply with title II of the ADA by captioning the videos so long as they provide links to those videos. To hold otherwise, would allow Florida to avoid compliance with the ADA and undermine the integrity of the statutory scheme.
18. District Court did not abuse its discretion in allowing further discovery to find out whether the State of Florida was receiving federal funds and therefore, subject to the Rehabilitation Act. In the 11^th Circuit, receipt of federal funds waives sovereign immunity under the Rehabilitation Act.
19. The 11^th Circuit generally requires a plaintiff to have an opportunity to conduct jurisdictional discovery prior to dismissal of a Rehabilitation Act claim, which is exactly what the trial court did here.
20. A concurring opinion by Judge Tjoflat agreed with the forcible waiver of sovereign immunity and with the ability to pursue injunctive relief against state officials in their official capacities. However, he wanted more explanation from the trial court before deciding whether to affirm the Rehabilitation Act discovery ruling.

 

Thoughts/Takeaways

 

1. Whenever it comes to sovereign immunity, it ultimately comes down to the question of what equal protection class persons with disabilities fall in. The problem of course, is that persons with disabilities vary their equal protection class depending upon the factual situation. I know of no other group that works this way. For example, in employment, per this case, people with disabilities are in the rational basis class. When it comes to accessing the courts, per Lane, people with disabilities are in the intermediate or perhaps even higher class.
2. In the 11^th circuit, when it comes to accessing places of higher education, people with disabilities get a forcible waiver of sovereign immunity even though a fundamental right is not at stake. Check your jurisdiction on this point as it very conceivably could vary from place to place.
3. The ability of deaf and hard of hearing individuals to access legislative proceedings in real time just like hearing individuals do is a fundamental right, and if not a fundamental right, a right vital to the future success of our society.
4. If you are a governmental entity live streaming your activities, under this decision the nonfederal governmental entity is subjecting themselves to damages and to claims of injunctive relief. So, if you are a nonfederal governmental entity in Alabama, Florida, or Georgia, you definitely want to get moving on making sure your streaming of legislative activities is captioned for the deaf and hard of hearing. Same goes for any deaf or hard of hearing individual physically attending legislative sessions. Remember, municipalities never get sovereign immunity as they are not an arm of the State.
5. As I have written since 2000, including in the very first edition of my book Understanding the ADA, the ADA isn’t about unfair advantage. Rather, it is about getting people with disabilities to the same starting line as those without the disabilities, which is exactly what captioning for the deaf and hard of hearing communities does.
6. In the 11^th circuit anyway, discovery over whether federal funds is attached to the operations of a nonfederal governmental entity is in order before a Rehabilitation Act claim can get dismissed.
7. What is listed in Tennessee v. Lane as examples of historical discrimination against persons with disabilities is conclusive by itself. If the right alleged is not listed there, proof of historical discrimination becomes much more involved.