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.
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.
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.
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.
This post provides a very quick overview of why I think the regulations implementing Titles II and III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 – 12189, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, will survive largely intact in the wake of the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), overruling the 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). This comes with the caveat that, in a sense, nothing is safe: the Court does not seem bound by even its own recent precedent. But starting from the premise that they meant what they said in Loper Bright – at least for now! – I believe we can continue to rely on Section 504, Title II, and Title III regulations (the “Regulations”).
That said, it seems likely that our opposing counsel – especially private counsel – will sense the opportunity for delay and billable hours offered by dispositive motions premised on the counterfactual demise of these regulations. The goal of this overview is to provide a quick research guide to opposing these motions. As a side effect, I’m hoping it provides a bit of reassurance to my beloved community in the current stressful legal environment.
For further reassurance, here is a photo of a golden retriever puppy, sticking her tongue out at attempts to undermine valid regulations.
With this post comes an offer of help: if you face a motion to dismiss or for summary judgment challenging one or all of the Regulations under Loper Bright, I would be happy to kibitz or, if appropriate, file an amicus brief. Indeed, some of the research below came from an amicus brief I co-wrote with an amazing team of colleagues including Claudia Center, Karla Gilbride, Arlene Mayerson, Susan Mizner, Carly Myers, and Justin Ormand. Any errors and of course all of the snark are mine.
CW: This post provides a starting point for research only. It is by no means complete and I will likely continue to update it, especially if I get useful feedback from the community. Always cite check your work!
Summary
Chevron, very roughly speaking, required courts to defer to agency interpretations of ambiguous statutory language. Loper Bright overruled this holding, stating that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” Id. slip op. at 35, 144 S. Ct. at 2273. That said, Loper Bright did two things that will help ensure the continued viability of the Regulations. First, it recognized that Congress could expressly delegate authority to an agency to promulgate regulations, which authority the Court would respect “consistent with constitutional limits,” id.; and second, it stated that it did not “call into question” the holdings in earlier cases that “relied on the Chevron framework” to hold that “specific agency actions are lawful,” id. slip op. at 34, 144 S. Ct. at 2273.
Starting in 1968 with the Architectural Barriers Act, and continuing through the Rehabilitation Act of 1973, its several re-enactments, and the Americans with Disabilities Act of 1990, Congress has enacted strong protections for the rights of people with disabilities to architectural and programmatic access in recipients of federal funding, federal and state government agencies, and private businesses. In so doing, it has explicitly delegated to a number of federal agencies the authority to issue regulations implementing these statutes. In addition, these statutes have been enacted and re-enacted either expressly incorporating and endorsing or implicitly adopting those agency regulations. Finally, Supreme Court and circuit court cases since the early 1980s have acknowledged the legal force of these regulations and adopted their interpretations of their respective statutes, both in reliance on Chevron and on independent grounds.
In the short period of time since the Loper Bright decision, it has been harnessed by several conservative courts to enjoin Biden Administration regulations protecting trans individuals. The decisions have relied on Loper Bright’s holdings that courts are uniquely tasked with interpreting statutory language and that “‘every statute’s meaning is fixed at the time of enactment,’” id. slip op. at 22, 144 S. Ct. at 2266, to reach the conclusion that “sex” at the time Title IX[1] was enacted “meant only a person’s biological sex – ‘an immutable characteristic determined solely by the accident of birth.’”[2]Texas v. Becerra, No. 6:24-CV-211-JDK, 2024 WL 3297147, at *6 (E.D. Tex. July 3, 2024) (internal citation omitted); see also Kansas v. U.S. Dep’t of Educ., No. 24-4041-JWB, 2024 WL 3273285, at *8 (D. Kan. July 2, 2024) (same); Tennessee v. Becerra, No. 1:24CV161-LG-BWR, 2024 WL 3283887, at *7 (S.D. Miss. July 3, 2024) (same, interpreting the Affordable Care Act regulations which incorporate by reference Title IX’s definition).
I do not believe the regulations implementing Section 504, Title II, or Title III face similar risk. While these statutes contain broad terms like “discrimination” which the regulations interpret in great detail – and which inaccessible programs and businesses will almost certainly argue are ambiguous – earlier versions of many those regulations were explicitly incorporated into statutory language and acknowledged as definitive in legislative history – “fixing” at least the ADA’s meaning “at the time of enactment,” Loper Bright, slip op. at 22, 144 S. Ct. at 2266. In addition, Congress has repeatedly and expressly delegated authority to various agencies to promulgate implementing regulations, and has enacted and re-enacted the relevant statutes without disturbing settled regulatory interpretation.
Statutory History: Delegation of Authority
Congress has – in statutory language – expressly delegated authority to a number of agencies to promulgate disability rights regulations.
The earliest example of this is the Architectural Barriers Act (“ABA”) in 1968, Pub. L. No. 90-480, 82 Stat. 718 (1968) (codified at 42 U.S.C. ch. 51), mandating the promulgation of “standards for the design, construction, and alteration” of buildings constructed, altered, leased by, or financed by the federal government to ensure access for people with disabilities. 42 U.S.C. §§ 4151-4152. The statute assigned responsibility for promulgation of standards to the General Services Administration (“GSA”) and to the Departments of Housing and Urban Development (“HUD”) and Defense (“DoD”) – all in consultation with the Department of Health, Education, and Welfare (“HEW”). Pub. L. No. 90-480, §§ 2-4.
In 1973, Congress passed the Rehabilitation Act. Section 504 of that statute contains the landmark prohibition on disability discrimination by recipients of federal funding. Pub. L. No. 93-112, § 504, 87 Stat. 355 (1973) (codified at 29 U.S.C. § 794). Section 502 created the Architectural and Transportation Barriers Compliance Board (“Access Board”) and delegated to it the task of ensuring compliance with standards issued by the GSA, HUD, and DoD pursuant to the ABA. Id. § 502. The 1978 amendments to the Rehab Act specifically delegated to the Access Board authority to establish standards to implement the ABA. Pub. L. 95-602, § 502, 92 Stat. 2955 (1978) (codified at 29 U.S.C. § 792(c)(A)).
In 1978, Congress also amended Section 504, expanding it beyond recipients of federal funding to prohibit disability discrimination by federal agencies. In so doing, it expressly instructed each agency to promulgate implementing regulations and to submit the regulations to the appropriate authorizing committees in Congress:
The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.
29 U.S.C. § 794(a).
Finally, the Americans with Disabilities Act of 1990 expressly delegated authority to the Department of Justice (“DOJ”), the Department of Transportation (“DOT”), and the Access Board to promulgate implementing regulations. 42 U.S.C. §§ 12134, 12143, 12149, 12164, 12186, 12201. This delegation — which included specific reference to existing regulations — is discussed below.
Regulatory History: Consistent Interpretation
[Accessibility note: the linked copies of the older regulations are Westlaw’s scans from the Federal Register. Though they are OCR’d, I’m guessing they’ll be challenging for a screen reader. It was the only source I could find for old Federal Registers.]
The first regulations implementing Section 504 were promulgated by HEW on May 4, 1977. 42 Fed. Reg. 22676 (“HEW Regulations”). That agency first proposed these regulations in May 1976 after consulting with the relevant committees of both the House and Senate.[3] Senate hearings in that year expressly considered the scope and effectiveness of the proposals.[4] In January 1977, first HEW Secretary Mathews[5] and then HEW Secretary Califano[6] provided each member of Congress with copies of the proposed regulations and solicited their comments. Following the final promulgation of those regulations, a House subcommittee conducted further hearings on the implementation of Section 504.[7]
Following issuance of the 1977 HEW Regulations, and pursuant to Executive Order 11914, 41 Fed. Reg. 17871 (Apr. 28, 1976), that agency issued regulations that were to “coordinate governmentwide enforcement of section 504.” 43 Fed. Reg. 2132 (Jan. 13, 1978) (“HEW Coordination Regulations”). These Coordination Regulations largely tracked the original 1977 HEW Regulations. In 1981, the HEW Coordination Regulations were transferred to the DOJ, 46 Fed. Reg. 40686 (Aug. 11, 1981) and are currently codified at 28 C.F.R. pt. 41 (“DOJ Coordination Regulations”).
Pursuant to the 1978 amendment to Section 504 that required each agency to issue regulations implementing that statute as to the activities of that agency, over 100 sets of regulations have been promulgated by over 90 agencies implementing that statute as to both the agencies themselves (“agency regulations”) and recipients of their funding (“recipient regulations”). And pursuant to the requirement that agency regulations be submitted to Congress, 29 U.S.C. § 794(a), congressional committees have had the opportunity to review at least 70 sets of Section 504 regulations. All of these regulations are based on and very similar to the HEW (now DOJ) Coordination Regulations. A working chart of these regulations was included as an appendix to the amicus brief referenced above.
Finally, pursuant to the instructions in the statutory text of the ADA, the DOJ, the DOT, and the Access Board have issued regulations implementing that Act.
Statutory Language Referencing and Instructing Consistency with Existing Regulations.
In passing the Americans with Disabilities Act, Congress not only expressly delegated authority to the DOJ, the DOT, and the Access Board, it took the further step of instructing those agencies to issue regulations consistent with existing regulations, effectively endorsing and incorporating those regulations.
Except for “program accessibility, existing facilities”, and “communications”, regulations under subsection (a) shall be consistent with this chapter and with the coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal financial assistance under section 794 of Title 29. With respect to “program accessibility, existing facilities”, and “communications”, such regulations shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally conducted activities under section 794 of Title 29.
42 U.S.C. § 12134(b). The statute directed the DOJ to issue regulations implementing Title III that were consistent with minimum accessibility guidelines to be issued by the Access Board:
Standards included in regulations issued under subsections (a) and (b) shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204 of this title.
[T]he Architectural and Transportation Barriers Compliance Board shall issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter.
Id. § 12204(a). Both Titles II and III of the ADA also delegate to the DOT the task of promulgating regulations relating to public and private transportation services. 42 U.S.C. §§ 12143(b), 12149(a), 12164(a), 12186(a).
Finally — and most significantly — the ADA directs that the statute as a whole is not to be construed to apply a lower standard than that of the Section 504 regulations:
Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.
Id. § 12201(a).
While there is a good deal of caselaw addressing the situation that occurs when Congress re-enacts a statute against the backdrop of consistent regulatory interpretation, see infra, there is surprisingly little addressing the much more compelling situation in which a new or re-enacted statute explicitly refers to earlier regulations, instructing future regulations to conform. The key Supreme Court case, widely cited, is United States v. Board of Commissioners of Sheffield, Ala., which held, “[w]hen a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby.” 435 U.S. 110, 134 (1978) (Emphasis added.)
The Third Circuit applied this principle in the context of the ADA in Helen L. v. DiDario, holding:
Moreover, because Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have the force of law. When Congress re-enacts a statute and voices its approval of an administrative interpretation of that statute, that interpretation acquires the force of law and courts are bound by the regulation. … The same is true when Congress agrees with an administrative interpretation of a statute which Congress is re-enacting. … Although Title II of the ADA is not a re-enactment of section 504, it does extend section 504’s anti-discrimination principles to public entities. Furthermore, the legislative history of the ADA shows that Congress agreed with the coordination regulations promulgated under section 504.
46 F.3d 325, 332 (3d Cir. 1995) (citing Board of Commissioners; emphasis added; internal citations omitted.) That “[m]oreover” is significant, as this passage follows a Chevron analysis and suggests (properly) that this is an independent ground on which to defer to the 504 Coordination Regulations. See also Hikvision USA, Inc. v. Fed. Commc’ns Comm’n, 97 F.4th 938, 947 n.5 (D.C. Cir. 2024) (Congress enacted a statute explicitly incorporating a list of banned equipment previously identified by the FCC; quoting Board of Commissioners; holding, “The same principles apply with even greater force here, where Congress so clearly intended to incorporate the existing” list).
Significance of Re-enactment
Congress has re-enacted Section 504 on numerous occasions and the ADA once since their original passage, at no time calling into question the interpretation in the then-applicable regulations. When this occurs, the regulations are entitled to deference under the legislative re-enactment doctrine. See, e.g. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (“It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’” (emphasis added; quoting NLRB, infra)); Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change” (emphasis added)); NLRB v. Bell Aerospace Co. Div. of Textron, 416 U.S. 267, 274–75 (1974) (“In addition to the importance of legislative history, a court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration. This is especially so where Congress has re-enacted the statute without pertinent change. In these circumstances, congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress. We have also recognized that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight.”).
Legislative History: Additional Support
In the legislative history of the 1974 amendments to the Rehabilitation Act, Congress stated that Section 504 “does not specifically require the issuance of regulations or expressly provide for enforcement procedures, but it is clearly mandatory in form, and such regulations and enforcement are intended.” S. Rep. No. 93-1297 (1974), as reprinted in 1974 U.S.C.C.A.N. 6373, 6390 (emphasis added). That Report directed that federal agencies cooperate in “developing standards and policies” for Section 504, and directed HEW to coordinate this effort. Id. at 6391.
In the legislative history of the 1978 re-enactment, Congress specifically referred to the HEW Coordination Regulations and noted that, in light of these regulations, the “amendment codifie[d] existing practice as a specific statutory requirement.” S. Rep. No. 95-890 at 19 (1978). The report also explained that the remedies provision was “designed to enhance the ability of handicapped individuals to assure compliance with . . . [Section 504] and the regulations promulgated thereunder.” Id. at 18.
In the legislative history of the ADA, Congress explained that the purpose of Title II was to “make applicable the prohibition against discrimination on the basis of disability, currently set out in regulations implementing section 504 of the Rehabilitation Act of 1973, to all programs, activities, and services” of state and local government, H.R. Rep. No. 101-485(II) at 84 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 366. That legislative history further explained why Title II contained less detail than Title I or Title III:
The Committee has chosen not to list all the types of actions that are included within the term “discrimination”, as was done in titles I and III, because this title essentially simply extends the anti-discrimination prohibition embodied in section 504 to all actions of state and local governments. The Committee intends, however, that the forms of discrimination prohibited by section 202 [that is, title II] be identical to those set out in the applicable provisions of titles I and III of this legislation.
Id. (emphasis added).
Key Provisions of Early Regulations
The regulations that Congress expressly recognized in the text of the ADA – the 1978 HEW Coordination Regulations, the 1990 DOJ regulations, and the MGRAD – include many of the principles that remain crucial to enforcing Section 504 and Titles II and III, including (but of course not limited to) the following. Note: citations are to the regulations incorporated by reference in the ADA, 42 U.S.C. § 12201(a); materially identical requirements can be found throughout Section 504 regulations starting in 1977.
Prohibition on denying opportunity to participate, providing unequal opportunity, providing benefit that is not as effective as that provided to others, or providing different or separate benefits. 45 C.F.R. § 85.51(b)(1)(1978).
Prohibition on using criteria or methods of administration that have a discriminatory effect. Id. § 85.51(b)(3).
Prohibition on doing those things “directly or through contractual, licensing, or other arrangements.” Id.
Requirement that programs and activities be administered in “the most integrated setting appropriate.” Id. § 85.51(d).
Requirement of auxiliary aids to ensure effective communication, including giving primary consideration to the request of the disabled person. 28 C.F.R. § 39.160(a).
Requirement of accessibility in new construction and alterations. 45 C.F.R. §§ 85.58.
Requirement of program access in existing facilities. 28 C.F.R. §§ 39.149 – 39.151.
Detailed accessibility standards governing new construction and alterations. MGRAD, 47 Fed. Reg. 33862 (August 4, 1982) (originally codified at 36 C.F.R. pt. 1190 (1983)).
Note that the right to reasonable accommodations under Section 504 was established by the Supreme Court itself. Alexander v. Choate, 469 U.S. 287, 301 (1985).
I believe these principles now have the force of law.
Cases Expressly Deferring to HEW, DOJ, and Other Regulations
There are a number of Supreme Court and circuit court decisions deferring to the HEW and DOJ Section 504 regulations, in some cases recognizing that they have the status of law. The earliest of these, Consolidated Rail Corp. v. Darrone, noted that, in passing the 1978 amendments to the Rehab Act “Congress incorporated the substance of [HEW’s] regulations into the statute.” 465 U.S. 624, 634 n.15 (1984); see also School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 279–80 (1987) (“As we have previously recognized, these [HHS] regulations were drafted with the oversight and approval of Congress … they provide ‘an important source of guidance on the meaning of § 504.’” (Internal citations omitted)). In the seminal case of Alexander v. Choate, the Court explained that “those charged with administering the [Rehabilitation Act] [have] substantial leeway to explore areas in which discrimination against the handicapped posed particularly significant problems and to devise regulations to prohibit such discrimination.” 469 U.S. at 304 n.24.
Two more recent Supreme Court cases interpreting and applying Titles II and III of the ADA recognize the history and status of the regulations implementing those provisions. Bragdon v. Abbott addressed the question whether asymptomatic HIV fell under the ADA’s definition of disability. The case relied on the instruction in 42 U.S.C. § 12201(a) that the ADA may not be construed to apply a lesser standard than Section 504 or any of its implementing regulations to hold that this “directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.” 524 U.S. 624, 631-32 (1998); see also id. (citing Darrone and holding that the HEW Coordination Regulations “are of particular significance.”)
The Bragdon Court also relied on the “consistent course of agency interpretation before and after enactment of the ADA. Every agency to consider the issue under the Rehabilitation Act found statutory coverage for persons with asymptomatic HIV.” Id. at 642. The Court concluded: “[t]he uniform body of administrative and judicial precedent confirms the conclusion we reach today as the most faithful way to effect the congressional design.” Id. at 645. This latter analysis relied on Chevron, but should in theory be covered by Loper Bright’s reassurance that the Court would not “call into question prior cases that relied on the Chevron framework.” Id. 144 S. Ct. at 2273.
A year later, the Court addressed the Title II regulations in Olmstead v. L.C. ex rel. Zimring, the case establishing that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.” 527 U.S. 581, 597 (1999). The Court noted Congress’s instruction to the DOJ to issue regulations implementing Title II that were consistent with the HEW and DOJ Coordination Regulations. Id. at 591-92 (citing 28 C.F.R. § 41.51(d)). While the Court noted that it was not determining the validity of the regulations – as neither party challenged them – it held, “[b]ecause the [DOJ] is the agency directed by Congress to issue regulations implementing Title II . . . , its views warrant respect.” Crucially for the purposes of this post, the Court went on to hold that it “need not inquire whether the degree of deference described in Chevron . . . is in order; ‘[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”’” Id. 597-98 (internal citations omitted).
A number of circuit courts have also noted the statutory and regulatory history in deferring to the DOJ’s ADA regulations. See, e.g., Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th Cir. 2003) (“Congress expressly authorized the Attorney General to make rules with the force of law interpreting and implementing the ADA provisions generally applicable to public services. See 42 U.S.C. § 12134(a). The DOJ issued its rules contemporaneously with its implementation of these provisions, using conventional notice-and-comment rulemaking procedures. … The resulting rules are therefore entitled to controlling weight unless they are procedurally flawed, substantively arbitrary and capricious, or plainly contradict the statute. … As such, the relevant DOJ rule interpreting the ADA’s anti-retaliation provision, 28 C.F.R. § 35.134, commands that same level of deference.”); Helen L., 46 F.3d at 332 (“[B]ecause Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have the force of law); Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1306 n.1 (10th Cir. 1999) (same, quoting Helen L.); see also Messier v. Southbury Training Sch., 916 F. Supp. 133, 141 (D. Conn. 1996) (“Additionally, when Congress, in enacting a statute, explicitly approves of prior administrative interpretations of a law, Congress is treated as having adopted such interpretations. … Thus, Congress’s instruction to the Attorney General to promulgate regulations under the ADA consistent with those promulgated under Section 504 indicates congressional approval of the above-cited specific prohibitions.”)
Conclusion
For these reasons, I believe that the 1977 and 1978 HEW Regulations, the 1990 DOJ agency regulations, and the MGRAD have the force of law. As noted above, these regulations cover a great deal of the territory we need to enforce the ADA and Section 504. Later regulations — the original Title II and Title III regulations, the 2010 DOJ regulations, and more recent and even unpublished regulations relating to web accessibility, medical equipment, and public rights of way — were all promulgated (or are in the process of being promulgated) pursuant to an express delegation and all are interpretations of Section 504 and the ADA that are consistent with previous regulations that were incorporated into the statute and that have been in effect since 1977. They should have similar status to those earlier regulations.
[1] Title IX of the Education Act of 1972, 20 U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”).
[2] The fact that this definition does not mean what conservative courts think it means – that it does not extract them from the definitional conundrum in which they have placed themselves – must be left for a different post by a writer better versed in this area. Paging Kyle Velte.
[3] Hearings on Rehabilitation of the Handicapped Programs, 1976, before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 1491, 1503-04 (1976) (hereinafter cited as “1976 Senate Hearings”.)
[5] Hearings on Review of Programs for the Handicapped 1976, before the Subcommittee on the Handicapped of the Senate Committee on Human Resources, 95th Cong., 1st Sess. 73 (1977).
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:
moved unsuccessfully to dismiss the case, ECF 10, 14, 15;[2]
objected unsuccessfully to the magistrate’s ruling denying their motion to dismiss, ECF 16, 19, 23, 35;
moved unsuccessfully for a protective order to prevent site visits by the plaintiff, ECF 20, 24, 26, 36;
moved unsuccessfully for a protective order to limit the scope of the plaintiff’s deposition of defendant’s most knowledgeable representative, ECF 30, 37;
refused to engage in class-wide discovery, requiring plaintiffs to file a successful motion to compel, ECF 27, 29, 36;
moved unsuccessfully to stay the litigation, ECF 32, 37;
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;
moved unsuccessfully to compel discovery from the plaintiff, ECF 55, 60, 62;
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;
moved unsuccessfully to stay all proceedings pending ruling on its summary judgment motion, ECF 71, 78, 81, 82;
unsuccessfully objected to the magistrate’s recommendation to deny its summary judgment motion, ECF 116, 126;[3]
withheld ADA surveys of challenged facilities requiring plaintiff to file a successful motion to compel, ECF 76, 85, 87, 93;[4]
moved unsuccessfully for a third protective order, ECF 91, 92, 96;
unsuccessfully opposed the plaintiff’s motion for class certification, ECF 103, 108, 110, 113;
unsuccessfully objected to the magistrate’s recommendation to grant the motion for class certification, ECF 116, 119, 123, 126;[5]
unsuccessfully petitioned the Third Circuit Court of Appeals pursuant to Rule 23(f) to challenge class certification; and
unsuccessfully moved — for a third time — to stay proceedings pending resolution of its Rule 23(f) petition, ECF 131, 134;
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.
[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).
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.
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.
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.”
Colorado Department of Corrections will Correct Systemic Failures that Threatened Privacy and Safety of Blind Incarcerated People.
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 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/.
Defendant: does a thing that violates a civil rights law.
Plaintiff: files suit under said civil rights law.
Court:
Defendant did the thing but you can’t show that it will definitely do the thing again: no standing to ask for an order to make sure Defendant does not do the thing again.
Defendant did the thing but then Defendant stopped doing the thing, at least for now, after you sued: your case is moot.
Defendant did the thing but you can’t show that your incarcerated [maybe disabled; maybe illiterate] client filed a Step 1 grievance within 30 days, then filed a Step 2 grievance within five days of receiving the response to the Step 1 grievance, and then filed a Step 3 grievance within five days of receiving the response to the Step 2 grievance: case dismissed.
Defendant did the thing and your incarcerated [maybe disabled; maybe illiterate] client filed all the grievances and responses on time but one step of the grievance used different language from another step of the grievance: case dismissed.
Defendant did the thing and your incarcerated [maybe disabled; maybe illiterate] client filed all the grievances and responses on time and used all the right language but the grievance was similar to an earlier grievance in which they were unable to follow all the rules and deadlines: case dismissed.
Defendant did the thing but you can’t show that the law against the [obviously illegal] thing was well-established: Defendant’s minions are immune from suit.
Defendant did the thing but you can’t prove that Defendant’s policy required doing the thing: Defendant city/county agency is not liable.
Defendant did the thing but Defendant is the state, so the 11th Amendment, which doesn’t actually say anything about this situation, makes the State immune from suit: no damages.
Defendant did the thing but you can’t show that Defendant intended to do the thing: no damages.
Defendant did the thing but you can’t show physical or financial harm from the thing: no damages.
