Category: News

Amicus Brief Supporting Full Enforcement of the ADA in Higher Education

Posted on by Amy Robertson
Icon showing two hands on a Braille book

Fox & Robertson along with co-authors Claudia Center and Michelle Uzeta of the Disability Rights Education and Defense Fund and Andrew Rozynski filed an amicus brief to the Ninth Circuit urging the court to reverse decisions in Payan v. Los Angeles Community College District that (1) entered a narrow and virtually toothless injunction despite robust evidence of systemic violations of the ADA; and (2) reduced the damages awarded by the jury by over 99%. The brief was filed on behalf of DREDF and 16 other disability rights organizations.

Plaintiffs in the case were two students at Los Angeles City College (“LACC”), as well as the National Federation of the Blind and the National Federation of the Blind of California. They sued the Los Angeles Community College District (“LACCD”) under Title II of the Americans with Disabilities Act alleging that LACCD and LACC discriminated against and failed to provide accommodations to blind students.

Following a trial in May 2023, the jury found that that LACCD’s websites and LACC library resources were inaccessible to blind students, that LACCD had provided inaccessible course materials and software, that it failed to make and honor required accommodations – including note-taking and recording classes – and that it actively excluded or discouraged blind students from certain classes. Based on these violations, the jury awarded $242,500 in damages to the two individual plaintiffs.

Almost a year later, the district court took two actions that the plaintiffs and amici are challenging before the Ninth Circuit: it issued an injunction that fell far short of remedying the violations identified by the jury; and it reduced the damages to $1,650.

The Injunction Should Have Remedied All Discrimination Before the Court.

In our civil legal system, juries are responsible for assessing the evidence at trial, determining whether the defendant violated the law and, if so, how much the plaintiff was entitled to recover in damages. It is up to the judge, however, to craft an injunction — an order — designed to remedy the violations. When the judge does this, they may consider both the jury’s verdict and any other evidence in the case that does not conflict with the jury’s verdict.

In the Payan case, the jury found 14 separate violations of Title II of the ADA and the judge had before him a good deal of additional evidence that these violations were systemic. He also had evidence that LACCD had not remedied these violations despite having an ostensible policy in place for over 20 years and having put other policies in place over the course of the litigation — none of which succeeded in ensuring accessibility. Clearly, the LACCD needed the force of a court order to provide accessible materials, include blind students in classes, and train professors and staff on these requirements. The injunction actually entered by the court did very little of this.

The amicus brief urged the Ninth Circuit to reinforce that courts have “not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 873-74 (9th Cir. 2017) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)).

We also urged that court to reject the district court’s reliance on LACCD’s last minute policy changes as evidence of reform. “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. . . . [I]f it did, the courts would be compelled to leave [t]he defendant . . . free to return to his old ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Here, LACCD did not “return” to its old ways; it never left them. The plaintiffs provided evidence that, even in 2023, after the issuance of the most recent policy on which the district court relied in justifying its narrow injunction, LACCD’s website and student-facing software continued to be inaccessible to blind users.

The Verdict Should Not Have Been Reduced

The district court made two distinct errors when it gutted the jury’s damages verdict. It improperly extended the Cummings case to preclude emotional distress damages under Title II; and it held that the evidence of harm before the jury consisted almost entirely of emotional distress.

In our brief, Amici explained that Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022) — which held that damages for emotional distress were not available under Section 504 of the Rehabilitation Act — did not apply to Title II of the ADA. We also argued that, even if Cummings applied to Title II, the damages awarded by the jury were not for emotional distress but for lost educational opportunity.

Characterizing the harm incurred by the plaintiffs as “emotional” misconstrued and demeaned their experiences; if adopted more generally, this holding will impact the ability of students to seek full redress for education delayed or denied. The plaintiffs here were two dedicated students, interested in pursuing classes in higher education. When LACCD made those classes inaccessible or unavailable to them, it did not merely cause them to be emotional; it took from them a specific opportunity to learn and to further their lives and careers. Lost educational opportunity is far more than emotional harm.

Amicus Victory: Ninth Circuit Holds CA Regional Centers are Places of Public Accommodation.

Posted on by Amy Robertson
Icon of a building

On Friday, August 30, the Ninth Circuit issued a memorandum opinion reversing what could have been a very harmful district court decision on the definition of “place of public accommodation” under Title III of the Americans with Disabilities Act. In the case of Guthrey v. Alta California Regional Center, the Court held that “[b]ecause the coordination of care services provided at Alta’s and [a vendor’s] offices are social services, those offices constitute ‘social service center establishment[s]’ and places of public accommodation.” No. 23-16056, 2024 WL 4002911, at *2 (9th Cir. Aug. 30, 2024).

The district court had refused to recognize Alta as a place of public accommodation because what it viewed as the services at issue — that subset that occurred in clients’ homes — did not occur in Alta’s building.This was clearly wrong under the Ninth Circuit principle that

[Title III] applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.

Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019) (emphasis in original).

The Ninth Circuit’s Guthrey opinion also corrected the district court’s holding that a Title III claim was a prerequisite for a claim under section 504 of the Rehabilitation Act, reaffirming the obvious that “[u]nder Section 504, there is no requirement that the defendant own or operate a place of public accommodation, as is required under ADA Title III.” Id., 2024 WL 4002911, at *2.

F&R teamed up with Michelle Uzeta at Disability Rights Education and Defense Fund and Deborah Gettleman of McGuinness Law Group to draft an amicus brief. And Ms. Guthrey’s lawyer was generous enough to cede all of his oral argument time to us, which you can watch online.

This case reminded me – a linguistics major – of a retronym. Webster’s defines “retronym” as

a term (such as analog watch, film camera, or snail mail) that is newly created and adopted to distinguish the original or older version, form, or example of something (such as a product) from other, more recent versions, forms, or examples.

Title III of the ADA prohibits disability discrimination in place of public accommodation. 42 U.S.C. § 12182. When the ADA was passed in 1990, we didn’t have a commercial internet much less smart phone apps. For this reason, the definition of “public accommodation” looks a lot like a collection of physical places: restaurants; theaters; stores; laundromats; law offices; museums; schools; etc. 42 U.S.C. § 12181(7). As you can imagine, not long after 1990, people with disabilities began to challenge — and courts began to wrestle with — lack of access in less tangible spaces: websites; video games; cable services; apps. Ultimately, the circuits have reached different conclusions, with the First Circuit holding that a “public accommodation” does not require a physical space and — relevant to Guthrey — the Ninth Circuit holding that it does. That latter Circuit and several others require that less tangible services of public accommodations have a “nexus” to a physical space. For example, in Robles, the Ninth Circuit held that the Domino’s website was one way to access the goods and services of the physical pizza places and thus had a sufficient nexus to those physical places. 913 F.3d at 905.

Now for the retronym: Alta California Regional Center is a physical place. An office building, open to the public, where it holds meetings with the public and where its employees do important parts of the work of providing services to its clients: determining eligibility; assessing needs; coordinating care. Yet because other services — hands-on services — are provided in clients’ homes, Alta argued that there was insufficient nexus to a physical place. Retronym: a concept that was only necessary because of intangible businesses is now being applied to precisely the sort of brick and mortar buildings — social service establishments are right there in § 12181(7) — contemplated by the drafters of the statute in 1990.

The Ninth Circuit mostly got this in the Guthrey decision, holding that Alta’s office were open to the public and provided social services. Id. at *2. Oddly, the court added, “Because Plaintiffs physically visited Alta’s . . . offices to receive those services, Plaintiffs have adequately alleged the requisite nexus to a physical place of public accommodation.” Id. This is an unnecessary retronym: we know physical buildings are places of public accommodation; we don’t need a nexus.

Excellent Order for Deaf Prisoners in our Case Against Tennessee Department of Correction

Posted on by Amy Robertson
Icon of prison bars with hands signing the ASL sign for "interpreter" and an icon depicting a videophone screen.

In July, we received an excellent ruling from the court on cross-motions for summary judgment in Trivette v. Tennessee Department of Correction.

While two of our plaintiffs were dismissed out of the case for failure to exhaust administrative remedies, we scored a major victory when the court granted summary judgment in favor of Disability Rights Tennessee with respect to (1) TDOC’s failure to provide interpreters for prison programming, medical encounters, religious services, and formal processes involving parole, discipline, or grievances; and (2) TDOC’s failure to provide videophones. The court also held that DRT – Tennessee’s Protection and Advocacy System – had standing to challenge prison policies that have harmed identified constituents, and that it did not have to exhaust administrative remedies under the Prison Litigation Reform Act before filing suit.

In her opinion, Judge Aleta A. Trauger stated:

The plaintiffs have identified hundreds of high-stakes interactions in which interpreters were not provided, many of which involved situations—such as receiving medical care—in which effective communication is an inherently vital component.

…

While there may be room for disputing whether certain specific listed encounters fall within the scope of TDOC’s violations, there is no longer any basis for disputing that such violations generally existed and were manifestations of a continuous, ongoing policy or practice.

Opinion at 63-64. You can read our team’s press release or watch some local news coverage including an interview with co-counsel Stacie Price, DRT’s Legal Director.

Onward to trial in January 2025!

ADA Defense Lawyers Prolong Litigation and Postpone Access:  A Case Study of Litigation Abuse

Posted on by Amy Robertson

[Originally published on the blog of the Civil Rights Education and Enforcement Center on February 27, 2018.]

Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination by private businesses.  Lawyers who defend noncompliant businesses argue that their opposing counsel — lawyers who represent people with disabilities seeking to enforce their rights — engage in litigation abuse.  They are lobbying for passage of H.R. 620, a bill that would add the requirement of a specifically-worded demand letter and four-month waiting period before a disabled person could enforce their rights.

This case study of ADA defense litigation abuse suggests that ADA defense counsel are already guilty of prolonging litigation, postponing access, and ultimately enriching themselves at the expense of both the businesses they represent and the people with disabilities who continue to be denied access 28 years after the ADA was passed.

H.R. 620’s requirement of a demand letter will remove any incentive for voluntary compliance and will add a new round of motions for ADA defense attorneys to file — challenging the wording, content, and specificity of the demand letter — on top of the already unconscionable litigation delay that is their standard practice.

To demonstrate the opportunities for delay in which ADA defense counsel typically engage, we looked at a case that a group of retail trade associations held up as a typical Title III case.  In a recent amicus brief to the Third Circuit, lawyers for the National Association of Convenience Stores, the National Grocers Association, and the Food Marketing Institute singled out the case of Heinzl v. Cracker Barrel Old Country Store, Inc., No. 14-cv-1455 (W.D. Pa. May 12, 2017) for their anti-ADA invective.

We took a closer look at the Cracker Barrel case and discovered that it presented a fairly typical example of ADA defense lawyer abuse.  The case alleged that a chain of fast food restaurants had noncompliant parking lots.  Instead of assessing and remedying these violations, Cracker Barrel’s attorneys — including several known for their serial defense of hundreds of ADA lawsuits and for proactively work against enforcement of Title III — prolonged the litigation for two and a half years with multiple, meritless motions and obstruction.

Cracker Barrel’s seven lawyers took the following actions in litigation, all of which were unsuccessful.  These lawyers’ abuse of the system is perhaps best illustrated by the fact that Cracker Barrel admitted, 14 months into the case, that “the subject properties contained barriers to access that were in need of remediation,”[1] yet continued to litigate for another year.

During the course of the litigation, Cracker Barrel and its attorneys:

  1. moved unsuccessfully to dismiss the case, ECF 10, 14, 15;[2]
  2. objected unsuccessfully to the magistrate’s ruling denying their motion to dismiss, ECF 16, 19, 23, 35;
  3. moved unsuccessfully for a protective order to prevent site visits by the plaintiff, ECF 20, 24, 26, 36;
  4. moved unsuccessfully for a protective order to limit the scope of the plaintiff’s deposition of defendant’s most knowledgeable representative, ECF 30, 37;
  5. refused to engage in class-wide discovery, requiring plaintiffs to file a successful motion to compel, ECF 27, 29, 36;
  6. moved unsuccessfully to stay the litigation, ECF 32, 37;
  7. refused to comply with the order granting the plaintiff’s motion to compel class-wide discovery, see ECF 41-2, requiring the plaintiff to move for sanctions, ECF 41, 43, 44; while the court did not impose sanctions, it imposed a deadline by which Cracker Barrel would have to produce class-wide discovery, ECF 47;
  8. moved unsuccessfully to compel discovery from the plaintiff, ECF 55, 60, 62;
  9. moved prematurely — and ultimately unsuccessfully — for summary judgment, ECF 64, 100, 105, 106, 113, in response to which the plaintiff moved successfully for additional discovery, ECF 74, 82;
  10. moved unsuccessfully to stay all proceedings pending ruling on its summary judgment motion, ECF 71, 78, 81, 82;
  11. unsuccessfully objected to the magistrate’s recommendation to deny its summary judgment motion, ECF 116, 126;[3]
  12. withheld ADA surveys of challenged facilities requiring plaintiff to file a successful motion to compel, ECF 76, 85, 87, 93;[4]
  13. moved unsuccessfully for a third protective order, ECF 91, 92, 96;
  14. unsuccessfully opposed the plaintiff’s motion for class certification, ECF 103, 108, 110, 113;
  15. unsuccessfully objected to the magistrate’s recommendation to grant the motion for class certification, ECF 116, 119, 123, 126;[5]
  16. unsuccessfully petitioned the Third Circuit Court of Appeals pursuant to Rule 23(f) to challenge class certification; and
  17. unsuccessfully moved — for a third time — to stay proceedings pending resolution of its Rule 23(f) petition, ECF 131, 134;
  18. unsuccessfully objected to the magistrate’s recommendation to deny the stay, ECF 135, 136, 137.

The case was filed in October, 2014, demanding that Cracker Barrel bring its parking lots into compliance with the ADA.  ECF 1.  In May, 2017, after all of the motions and maneuvers listed above, Cracker Barrel agreed to precisely this relief:  that it would survey it stores and bring the parking lots into compliance with the ADA.  ECF 163-1. In the meantime, people with mobility disabilities went another two and a half years without accessible parking, and Cracker Barrel’s lawyers billed their client for the time spent drafting and filing 21 separate briefs in pursuit of this campaign of delay. 

H.R. 620 will add yet another layer of process — another hoop to jump through — before people with disabilities can have the access guaranteed them when the ADA was passed in 1990.  It will also add to the list above another motion that ADA defense counsel can be paid to file.

The above Case Study is available in MS Word here.

The above Case Study is available in PDF here.

——————————-

[1] See Heinzl v. Cracker Barrel Old Country Stores, Inc., No. 2:14-cv-1455, 2016 WL 2347367, at *11 (W.D. Pa. Jan. 27, 2016).

[2]  The numbers following each item refer to the docket numbers in the PACER Electronic Case Filing system, www.pacer.gov.  All substantive filings related to each item are listed, including motions and orders.

[3] Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2016 WL 1761963 (W.D. Pa. Apr. 29, 2016).

[4]  Heinzl v. Cracker Barrel Old Country Store, Inc., No. 2:14-CV-1455, 2015 WL 6604015 (W.D. Pa. Oct. 29, 2015).

[5]  Heinzl, 2016 WL 1761963.

Acheson Hotels v. Laufer: Revenge of the Data Nerds

Posted on by Amy Robertson

Fox & Robertson along with a dream team of drafting partners filed an amicus brief today in the case of Acheson Hotels v. Laufer, currently pending in the Supreme Court. The case addresses the issue of “tester standing,” that is, whether people protected by civil rights laws have standing to sue when they intentionally investigate compliance and encounter discrimination.

Because tester litigation has been responsible for calling out and challenging widespread disability discrimination, businesses hate it. The amicus briefs they filed were full of hair-on-fire numbers — of pending ADA lawsuits — that they characterize as a “staggering,” “unrelenting tide” that is “clog[ging] federal court dockets.” Chamber of Commerce Br. 7, 11; Retail Litig. Ctr. Br. 4, 11, 20, 22. One business brief asserted that tester standing “threat[ened] . . . the cohesiveness of our union.” Ctr. for Constitutional Responsibility Br. 1. Drama much?

Of course numbers are catnip to the data nerds here at Fox & Robertson World Headquarters, so we decided to take a look at the actual numbers of ADA cases filed in federal court — based on data gathered by the United States Courts on its uscourts.gov website — and see how they looked in context. Here’s a chart comparing the “ADA-Other” category — roughly speaking, non-employment ADA cases, including the Title III cases that cause flaming hair on the business side — with six other common types of cases. Note the bright red ADA-Other line at the bottom.

Image: a line graph titled “Case Filings by Type (Table C-2),” with the years 2008 to 2022 on the x axis and numbers 0 to 300,000 on the y axis. Seven colored lines cross the graph horizontally, each representing a type of case. The top line is a jagged line representing tort cases (varying between approximately 50,000 and 135,000). The line representing the category "ADA - Other" is in red. It starts and ends at the bottom of the seven lines, intermingling with them in 2020. ADA-Other cases vary from approximately 1,700 to approximately 12,000. Other types of cases are as follows: Contract cases, in green, vary from approximately 23,000 to 35,000. Labor law cases, in light blue, vary from approximately 13,000 to 19,000. Other civil rights laws, in dark green, vary from approximately 11,000 to 16,000. Employment cases, in purple, vary from approximately 11,000 to 15,000. Intellectual property, in blue, vary from approximately 8,000 to 14,000.

See? Not so bad after all! If business put half the effort into compliance that they put into whining, the world would be pretty damn accessible by now.

Be sure to check out our amicus brief with other fun facts and incisive arguments from the dream team: free agent disability rights rockstar Karla Gilbride, Michelle Uzeta at Disability Rights Education and Defense Fund, Tom Zito at Disability Rights Advocates, Justin Ormand at Allen & Overy and yours truly here at the World HQ.

Take Our Survey: Hoteling While Disabled

Posted on by Amy Robertson

Ever frustrated because a hotel website doesn’t provide enough – or any – information to reserve the accessible room you need?  

Tired of having to call and getting the run-around just to find out which room has the right accessibility features?  

How about that time you showed up and they’d given away the accessible room or turned out not to have one after all?  

Please take our survey: tinyurl.com/hotel-survey

We want to hear about your experiences! The Supreme Court is hearing a case about whether a person who investigates hotel websites – sometimes called a “tester” – should be allowed to sue when the website does not include required information about accessible rooms and accommodations. Testers are an extremely important way for the disability community to enforce the Americans with Disabilities Act so it’s important that we win this case. 

Fox & Robertson is working with a bunch of kickass disability rights organizations including Disability Rights Education and Defense Fund, The Arc, the National Disability Rights Network, and Paralyzed Veterans of America to write a brief to the Court and would like to include as many stories as possible of the realities of traveling while disabled — specifically how hard it is to make hotel reservations and secure a room with accessibility features because of a lack of information about accessible features on the website.  

You can help us inform the Court by sharing your experiences traveling while disabled. Please fill out the form — tinyurl.com/hotel-survey — with as much information as you can by June 30, 2023.

Thanks!

Alt text: Hand opens a hotel room door, text reads “We need your hotel experiences reserving accessible hotel rooms” with logos from DREDF, PVA, NDRN, The Arc and Fox & Robertson.

F&R, DREDF submit amicus brief in support of proactive ADA enforcement.

Posted on by Amy Robertson

Fox & Robertson, along with Michelle Uzeta of the Disability Rights Education and Defense Fund (“DREDF”) drafted an amicus — or “friend of the court” — brief to the Ninth Circuit supporting the time-honored and effective civil rights enforcement technique called “testing.” The amici filing the brief were DREDF, the Civil Rights Education and Enforcement Center (“CREEC”) as well as four disabled women who both need accessible businesses and facilities and have served as testers: Corbett O’Toole, Julie Reiskin, Ann Cupolo-Freeman, and Ruthee Goldkorn.

The Ninth Circuit recently issued a decision in the case of Langer v. Kiser, 57 F. 4th 1085 (9th Cir. 2023), strongly supporting civil rights testing in the context of Title III of the Americans with Disabilities Act, which prohibits disability discrimination by places of public accommodation. In response, the defendant business — and several supporting businesses and trade associations as amici — are petitioning the Ninth Circuit to rehear the case. Our brief asks the court to deny that petition.

We were inspired to write by the truly astonishing level of invective and baloney in the petition and amicus briefs urging rehearing. Title III testing involves people with disabilities intentionally putting themselves in a situation to experience, observe, and challenge discrimination. Given the vast number of businesses and facilities governed by Title III, testing is essential to full compliance, so people with disabilities can go about their days integrated and included in our society.

In this case, the plaintiff, Chris Langer, is a wheelchair-user who attempted to patronize a lobster shop in San Diego, but was unable to park due to the lack of accessible spaces. Mr. Langer sued the owners of the shop in 2018 and — rather than applying a bit of paint to asphalt to bring their parking lot into compliance — the owners fought back, challenging Mr. Langer’s standing to sue, that is, his right to be in court in the first place. They did not claim that their parking lot was accessible or vow to correct their violations; they just wanted to take away Mr. Langer’s right to challenge those violations and, along with it, both the rights of other plaintiffs to challenge other Title III violations and the rights of people with disabilities in general to use and enjoy the accessible facilities that result from these lawsuits.

The Ninth Circuit’s decision — almost precisely five years after the case was filed — strongly upheld Mr. Langer’s standing as both a patron and a tester, holding that “a plaintiff’s motive for going to a place of public accommodation is irrelevant to standing.” Langer, 57 F.4th at 1084.

In response to this clear and well-supported decision, the defendants asked the Ninth Circuit to rehear the case, and gathered four sets of amici to support them. These briefs were an eyebrow-raising collection of misconstruction and mud-slinging. Lawyers who represent disabled plaintiffs in Title III cases are “unscrupulous,” “opportunistic” and “predatory,” engaging in a “transfer of wealth.” Curiously, they call Title III litigation “meritless” and “baseless” without any argument or evidence to suggest that either the Kisers’ premises or the facilities in the cases they rely on are actually in compliance — 30 years after the deadline for compliance.

So much vitriol – so little substance!

Our amicus brief pushed back hard — not with the counter-invective that hilariously populated the authors’ text threads, but with fact and law. From our brief:

  • Congress chose to make private enforcement “the primary method of obtaining compliance with the [ADA].” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir. 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).
  • Based on barriers to the courthouse, “the ADA remains a chronically under-enforced statute.”
  • The “ADA regulates more than 600,000 businesses, [and] 5 million places of public accommodation.”
  • Testers have been widely accepted as enforcers of civil rights starting with Black people intentionally riding a segregated bus or using a whites-only waiting room. Evers v. Dwyer, 358 U.S. 202, 204 (1958); Pierson v. Ray, 386 U.S. 547, 558 (1967). 
  • People with disabilities have been granted standing to challenge architectural barriers in decisions around the country — and previously in the Ninth Circuit. Suárez-Torres v. Panaderia Y Reposteria España, Inc., 988 F.3d 542, 551 (1st Cir. 2021); Mosley v. Kohl’s Dep’t Stores, Inc., 942 F.3d 752, 758 (6th Cir. 2019); Civil Rights Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093 (9th Cir. 2017); Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 457 (4th Cir. 2017); Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1332 (11th Cir. 2013); Harty v. Simon Prop. Grp., L.P., 428 F. App’x 69, 71 (2d Cir. 2011.)

We explained the value of testing in terms of the everyday experience of the amici:

It is the experience of the Individual Amici that illegal barriers are a routine impediment to their professional and personal lives. By the time a wheelchair-user arrives at a public accommodation, hoping to enjoy its goods, services, facilities, privileges, advantages, and accommodations, it’s too late for a lawsuit to be much use. You roll up to a place that should have been made accessible some time in the past 30 years only to discover that you can’t park, or you can’t get in the door, or you can’t use the restroom, or – in the case of the Individual Amici in the CREEC case – you can’t get from the airport to your hotel because the hotel’s van is inaccessible. The fact that you just achieved an injury-in-fact and an admit-one ticket to federal court does not let you park, or get in the door, or use the restroom, or get to your hotel.

Testers help solve this problem. Wheelchair-users who are intentional about investigating and challenging barriers can help move our society toward a time when they and others can go about their daily lives expecting and finding access to a wide range of facilities. . .

Throughout its decision, the Ninth Circuit cited to and relied on the CREEC case which was brought by (as the name suggests) CREEC, as well as the individual amici Corbett O’Toole, Julie Reiskin, Ann Cupolo-Freeman, and Ruthee Goldkorn. Because of their crucial role in the case on which the Ninth Circuit relied, these four women, along with CREEC and DREDF, were the amici asking the Court to turn away from the business-side invective and uphold an important tool for civil rights enforcement.

Deaf and Hard of Hearing People in Colorado Prisons Will Get Interpreters, Other Effective Communication and Accommodations

Posted on by Amy Robertson

Disability Law Colorado Settles Lawsuit Against Colorado Department of Corrections

Disability Law Colorado (DLC) and the Colorado Department of Corrections (CDOC) have reached a settlement in a lawsuit DLC brought on behalf of Deaf and hard of hearing people incarcerated in CDOC’s custody.  DLC is represented by student attorneys and their professors at the Civil Rights Clinic (CRC) at the University of Denver Sturm College of Law, as well as attorneys from the Civil Rights Education and Enforcement Center (CREEC) and the Denver law firm of Fox & Robertson.

The lawsuit alleged that CDOC was in violation of the Americans with Disabilities Act (ADA) by failing to provide sign language interpreters for medical appointments, classes, and other significant interactions; failing to provide equal access to notifications and alarms; and failing to provide and maintain hearing aids.

In the settlement, CDOC commits to ensure that Deaf incarcerated people have access to sign language interpreters for key interactions such as intake and orientation; medical appointments; educational, vocational, and religious programs; and preparation for parole and release. CDOC will provide captioned telephones for hard of hearing incarcerated people, and continue to provide – per an earlier settlement with CREEC – videophones for those who are Deaf. CDOC will also ensure that hard of hearing incarcerated people are evaluated by an audiologist and provided hearing aids if necessary; those with hearing aids will receive prompt repairs and replacement batteries. 

The settlement requires CDOC to provide text-based notifications for incarcerated people who cannot hear announcements over the public address system, and to provide a visual or tactile alarm system to ensure that Deaf and hard of hearing incarcerated people are not left behind in emergencies.  

The lawsuit was the result of a two-year investigation by student attorneys at the CRC, who reviewed thousands of pages of documents and conducted hundreds of interviews. The investigation revealed systemic discrimination against Deaf and hard of hearing people and led to the filing of the federal court complaint in March of 2021.

Later that year, the parties began to discuss settlement, culminating in the agreement announced today.

“This settlement will finally ensure that Deaf and hard of hearing people are treated equally in Colorado’s prisons – that, like others, they can understand and communicate with medical personnel, succeed in educational and vocational programs, be safe in emergencies, and prepare for parole and release,” said Carrie Griffin Basas, DLC’s Executive Director. “We commend the CDOC for working with us improve the conditions for Deaf and hard of hearing incarcerated people.”

“For years, Deaf and hard of hearing people incarcerated by CDOC fought for their rights. We are grateful for their tenacity and courage. This settlement would not have been possible without their hard work and that of the multiple generations of Civil Rights Clinic student attorneys who fought alongside them,” added Professor Laura Rovner, Director of the Civil Rights Clinic. “We thank them, DLC, and our co-counsel for helping to bring about these critically important reforms.”

“We are excited for this important settlement and fortunate to have worked with DLC and d/Deaf and hard of hearing incarcerated people in this lawsuit,” said Pilar Gonzalez Morales, Director of the Accessibility Project at CREEC. “We commend the work of all the people held by CDOC who supported and helped us bring this lawsuit, as well as the work of our co-counsel partners.”

“We are grateful for DLC’s leadership in this important case, and for the courage of the individual incarcerated people who worked with us to document discrimination and craft the settlement,” said Amy Robertson, with the law firm of Fox & Robertson. We look forward to working with the CDOC to implement this ground-breaking settlement.”

National Federation of the Blind of Colorado, Blind Prisoners Resolve Suit Against CDOC.

Posted on by Amy Robertson

Colorado Department of Corrections will Correct Systemic Failures that Threatened Privacy and Safety of Blind Incarcerated People.

Icon showing blind person using cane, laptop, and headphones, all behind prison bars.

Brian Christopher Mackes and Adrian Chávez, two blind men in the custody of the Colorado Department of Corrections (CDOC), and the National Federation of the Blind of Colorado have settled the lawsuit they brought against CDOC last year. The suit alleged that CDOC denied blind prisoners access to the aids and services needed to participate in educational programming, work assignments, and recreation. According to the complaint, CDOC also failed to provide blind prisoners with effective communication of the materials and information that the Department provides prisoners in written form, such as handbooks, regulations, and grievance forms. This conduct forced blind prisoners to rely on other inmates to help them with various tasks, such as reading mail, and to provide them with information, threatening their privacy and safety.

The plaintiffs were represented by attorneys from the Civil Rights Education and Enforcement Center (CREEC), the Denver law firm of Fox & Robertson, and the Baltimore law firm of Brown Goldstein & Levy.

The settlement requires that each blind prisoner have access to a laptop loaded with screen reader software, which reads digital material aloud, as well as a typing tutorial program, an ebook reader, and other assistive technology. These devices will also contain accessible-format versions of key prison documents. Blind prisoners will also have access to a scanner and printer to which the laptops can be connected so that they can read mail and other printed documents. All job and education information will be made accessible, and blind prisoners cannot be denied access to any such opportunity based on disability.

“Blind prisoners do not seek, and this settlement does not grant, special treatment,” said Jessica Beecham, president of the National Federation of the Blind of Colorado. “Blind incarcerated people will now receive the accommodations they need, and to which they are legally entitled, in order to fully and equally participate in the programs and opportunities available to other members of the incarcerated population. We commend the Colorado Department of Corrections for reaching this agreement, and hope that other corrections systems throughout our nation will take note of the necessary and humane reforms taking place in Colorado. We are grateful for the leadership of our national organization in coordinating the expertise, resources, and talent to make these changes a reality.”

“We recognize and appreciate the courage of the individual plaintiffs, Brian Mackes and Adrian Chávez, who documented the discrimination they faced and worked with us and with the Department to craft this ground-breaking settlement,” said Amy Robertson, an attorney with Denver’s Fox & Robertson who represented the NFB of Colorado and the individual plaintiffs. “We look forward to working with the CDOC to ensure access and privacy for blind people in CDOC custody.”

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About the National Federation of the Blind of Colorado

The National Federation of the Blind of Colorado, an affiliate of the transformative membership and advocacy organization of blind Americans,  is a nonprofit made up of blind people of all ages and their families and friends. NFB-CO is dedicated to ensuring that blind Coloradoans have full and equal access to all the services, programs, and activities of the State. NFB-CO serves as an advocate for change when equal treatment is denied. https://www.nfbco.org/.

Tim Fox Appointed to Monitor Landmark Fair Housing Settlement

Posted on by Amy Robertson
Head shot of Tim Fox, white man in sports coat; wheelchair headrest is visible.

A federal district court in California appointed Fox & Robertson partner Tim Fox as the monitor in the landmark fair housing settlement in Independent Living Center of Southern California v. City of Los Angeles. The settlement, reached in 2016, requires the City to produce 4,000 units of public housing accessible to people with disabilities, and to reform and enforce policies to ensure that these units are available to and occupied by people with disabilities. As of July 1, Mr. Fox will succeed Bill Lann Lee, who has held the position of Monitor since July, 2018. Mr. Lee will be retiring later this summer.

When Mr. Lee was appointed, progress on the settlement had largely stalled. Under his guidance, and in partnership with City staff and plaintiffs’ counsel, the City has reformed many essential fair housing policies, added staff necessary to the implementation of the settlement, and retained an expert in accessibility standards to design what the parties believe to be the largest and most complex accessibility survey to date. Mr. Fox has been Mr. Lee’s principal deputy in this effort, and has led up the effort to create a comprehensive database that will replace the patchwork of electronic and paper systems that previously tracked the City’s public housing.

Mr. Fox will continue to lead up the database team. He will also oversee teams working on policy coordination and reform, and survey and remodeling of public housing to remove barriers. He will be assisted by F&R’s Amy Robertson and Elizabeth Jordon of the Civil Rights Education and Enforcement Center.

Mr. Fox specializes in complex impact litigation with a particular focus on monitoring class action settlements. For example, as class counsel, he monitored a settlement requiring accessibility upgrades at more than 1,400 Kmart stores nationwide, and settlements securing improvements in the accessibility of sidewalk and curb ramp systems in multiple cities. He has extensive experience developing efficient systems for monitoring class action settlements, including creating databases to assist with monitoring.

Mr. Fox is looking forward to continued productive collaboration with the City and plaintiffs’ counsel toward the goal of ensuring that disabled Angelenos have access to supportive and accessible housing.