I hope everyone had a safe and festive Fourth of July! I’m really excited to be back to my monthly legal update—because it means that I’m not blogging about overlays! So let’s jump right into some of this month’s interesting web accessibility cases.
Should Special Standing Rules Exist for Educational Institutions?
Poor Andres Gomez can’t catch a break. Last month, a court in California ruled against him when he tried to rent a car to visit his aunt. A month before that, courts in California were also dismissing his myriad of lawsuits against California wineries and real estate companies. This month, Mr. Gomez targeted an organization closer to his Florida home—the Miami International University of Art & Design (“AI Miami”). Mr. Gomez was interested in computer graphical design and thought about visiting AI Miami and attending courses at its physical campus. However, when he visited the university’s website, which included application information and a description of the school’s programs, he found that it was inaccessible.
Mr. Gomez then sued AI Miami, which promptly moved to have the complaint dismissed. Specifically, the school alleged – and the court agreed – that Mr. Gomez “[was] a ‘prospective student’ who [was] ‘interested’ in attending AI Miami's physical school, without any indication of his physical proximity to the campus or his plans to return.” Gomez v. Miami Int’l Univ. of Art & Design, 2022 U.S. Dist. LEXIS 97938 at *6 (S.D. Fla. 2022). The court also noted that Mr. Gomez never indicated that he tried to access the information he could not find on AI Miami’s website through alternate channels (such as visiting the campus).
I’ve long questioned whether a court would look to the availability of alternate forms of effective communication in web accessibility lawsuits. For instance, a year ago, I noted that providing a phone alternative to their inaccessible website could not help Domino’s Pizza when it required a 45-minute hold. In AI Miami, Mr. Gomez apparently did not allege that tried other avenues to access the same information that he could not get through AI Miami’s inaccessible website and so his case was dismissed.
My problem with this decision is that applying to college is not like ordering a pizza. When someone orders a pizza, they know exactly what they want and, if the pizzeria fails to meet their needs, they’ll order a pizza from someplace else. Applying to college is a much more delicate and time-consuming decision that involves weighing the advantages and disadvantages of each school. When students finally decide to visit a college that they are interested in, they have already researched it carefully (usually through its website). For many blind students, this means that they would have no reason to visit the school if the school’s website was inaccessible.
More Confusion about the Nexus Requirement
Courts continue to create conflicting opinions about the nexus standard—and two nearly simultaneous opinions from districts courts in California illustrate this split. In Langer v. Oval Motor Sports, Inc., 2022 U.S. Dist. LEXIS 99575 (N.D. Cal. 2022), Chris Langer visited the website of Antioch Speedway to look for information about car racing but could not understand the videos on the site because the videos were not captioned. Because Mr. Langer could not show that he was deterred from physically visiting the speedway, the court held that he did not allege a clear nexus between barriers on the website and a physical place of public accommodation. A few days later, a different district court in California came to a very different conclusion in Erasmus v. Andrea Tse M.D. Inc., 2022 U.S. Dist. LEXIS 107569 (E.D. Cal. 2022). In that case, Megan Erasmus was unable to understand videos about cosmetic dental procedures on the defendant’s website because they lacked captioning. While she was interested in the procedure, she also alleged that she was a “tester” and had no specific interest in visiting the defendant’s business. Nonetheless, the court found that Ms. Erasmus had standing because the lack of captioning impeded her ability to make a decision about possibly becoming a customer. Two district courts in the Ninth Circuit faced with almost identical facts come to completely opposite decisions at the same time.
On a side note, the Erasmus decision is also noteworthy because it demonstrates a point about mootness. Before the court issued its opinion, the dental practice removed the uncaptioned videos from its website, thus removing the core barrier alleged in the plaintiff’s complaint. Because the defendant could not show that similar barriers would not exist in the future, however, they did not succeed in having the case dismissed on mootness. This result should hardly come as a surprise to most lawyers but it does raise an important point for businesses: it is always best to avoid a problem in the first place instead of waiting for litigation to solve it for you.
ADA, Web Accessibility, and the Supreme Court
Whatever your political beliefs, the last month has been quite unsettling. The big news is obviously the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org., 2022 U.S. LEXIS 3057 (2022), which overturned Roe v. Wade, 410 U.S. 113 (2013) and Planned Parenthood v. Casey, 505 U.S. 833 (1992). And, just this last week, the Supreme Court ruled in West Virginia v. EPA, 2022 U.S. LEXIS 3268 (2022) that the Clean Air Act did not authorize the Environmental Protection Agency to create regulations that would phase out generating electricity by burning coal.
I won’t get into the details of these decisions; abortion and coal mining are weighty, political topics. Instead, I wanted to take a moment to suggest that less politically charged issues that we all support now stand in jeopardy. Courts are supposed to be “above” politics and apply the logic of judicial precedent to come to impartial decisions based on the facts presented in each case. And the recent Supreme Court decisions make it a lot easier for a judge to strike down important laws and ideas that all of us agree with.
Take the Americans with Disabilities Act (ADA), for example. Title III of the ADA prohibits discrimination against people with disabilities by places of public accommodation. But that right to restrict private entities flows from the Supreme Court’s decision in Katzenbach v. McClung, 379 U.S. 294 (1964). This case is well-known to every first year law school student as the “Ollie’s Barbecue” case—and most lawyers can tell you the facts of this case from memory. In a nutshell, Ollie’s Barbecue was a local barbecue restaurant in Birmingham, Alabama that refused to seat black customers. After the passage of the Civil Rights Act of 1964, they were sued and Ollie’s Barbecue responded by claiming that Congress had no authority to pass the Civil Rights Act. The Supreme Court disagreed and held that even a small, local restaurant in the middle of Alabama had some effect on interstate commerce—and thus Congress could regulate its activities. As a first year law student, I remember reading the Katzenbach decision in disbelief as I couldn’t imagine that the framers of the Constitution really imagined that they could regulate a local restaurant as “interstate commerce.” Yet, the Commerce Clause is the basis of the Civil Rights Act, the ADA, and every civil rights law in this country affecting private individuals. In a very real sense, almost every form of discrimination that we recognize today (e.g. gender, race, national origin, etc.) all depend on the Commerce Clause of the Constitution and the Ollie’s Barbecue case. So when the Supreme Court threw away Roe earlier this week because they could not find a right to abortion squarely in the Constitution, I knew that they could just as easily dispose of many other rights just as quickly. And the first civil rights law that would likely go would be the ADA because, well before the passage of the ADA, the Court had held in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), that discrimination against people with disabilities (unlike discrimination on the basis of race or gender) was not subject to heightened scrutiny.
And what about the EPA decision? Here, the Supreme Court said that Congress could never have intended the EPA to create such major, groundbreaking regulations simply by passing the Clean Air Act. That may seem plausible if you profess believing in small government. But if the EPA can’t regulate coal burning under the Clean Air Act, wouldn’t it also be easy for a plaintiff to successfully argue that the Department of Justice has no authority to create web accessibility regulations under the ADA? After all, web accessibility is controversial and the internet as we know it today didn’t exist in 1990 when the ADA was passed.
The EPA decision leaves our country in an impractical position. Without the ability to adapt existing laws to changing times, federal agencies will always need Congress to pass new authorizing legislation—which seems less and less likely given how polarized our society is becoming. So, if the Department of Justice can't create a web accessibility rule that will get struck down, it's up to Congress to compromise and develop a new version of the ADA that covers websites? I just don't see that happening. Instead, agencies should be able to create regulations and, where they go too far, they can be challenged both by Congress and in the courts.
I’m not going to stand on a soapbox, denounce these decisions, and try to indoctrinate you in my liberal political views. After all, some of you may think that the last month of Supreme Court decisions reflects a return to basic constitutional originalism, while others will see it as a right-leaning political attack. My point is that, no matter which way you view it, the last few decisions threaten some things that all of us involved in digital accessibility believe and support—such as the ADA and clarity around web accessibility. There are always unintended consequences when a delicate balance is shifted too far or too quickly.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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