This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings
SANHO STEELE-LOCHART: Now I'll go ahead and introduce our first presenters for today. A-ha! There we go. So this morning we have "Advancing Disability Rights through Impact Litigation." Our first presenters this morning, I want to be sure I get their titles correct. We have Jinny Kim, who is the supervising attorney at Disability Rights Advocates; we have Rebecca Williford, who is the President and CEO of Disability Rights Advocates; and I know there's a third person but they're not on my list. Rachel Weisberg, supervising attorney. I knew that. I was testing you. We're off to a great start, everyone. Thank you so much. Please give a warm welcome to our first presenters for the morning.
[Applause]
REBECCA WILLIFORD: Thank you so much. My name is Rebecca Williford. I use she/her pronouns, and I am a white woman with shoulder length dark brown hair. I'm sitting in my manual wheelchair, and today I'm wearing a Carolina blue blazer. I'm a proud double Tar Heel. This is my basketball season. So we are so excited to be here with you all today. I'm so pleased to be here with my colleagues, Rachel and Jinny from DRA. This is the first time we've done this panel. The hope is that we can do this on an annual basis -- don't throw tomatoes at me -- because we realize the need to look at what's happening in the landscape of impact litigation and where we need to go from here and what are the big issues we need to tackle.
For many of you in the audience, we work with, we cocounsel with you. This community is so important and vital to our work. But for those that aren't familiar with Disability Rights Advocates, we are a national nonprofit legal center. We are about 30 years old. We were founded 3 years after the ADA was passed when our founders saw the need for impact litigation to enforce the ADA, and many of y'all helped them as they were getting DRA off the ground.
Today we have offices in Berkeley, New York, and Chicago. We litigate with local partners nationwide. Our mission is to advance the rights, inclusion, and equity of people with disabilities through impact litigation, education and advocacy. But our superpower is our impact litigation. In thinking about things getting this panel together, there are so many tools in the toolbox. And everyone here does something a little bit different to help advance disability rights to help deliver on that promise of the ADA. When you think about Jacobus tenBroek and the NFB's motto "Live the life you want," it takes so much work to get there and recognize that impact litigation is one tool. So that's what we're here to focus on. We're going to take a look at where we've been, where we're going. And some of these cases are cases that DRA worked on. A lot of them with you. Others are ones we didn't work on but were very significant in the past year and are critical to highlight in thinking about doing a year in review.
And of course we couldn't capture it all. We'll leave room for discussions at the end. Please tell us what we left out, what we got wrong. We're excited to jump into this. And we've divided the presentation into three parts. There's going to be some good news about cases. There will be some bad news. We can take a moment to breathe, pause, think of happy sunny places when we think of some of the cases that didn't go so well. But I think the hope is that we can talk about sort of strategies for the road ahead, and hopefully this panel can be a launching pad for a lot of the litigators in the room who are thinking about cases to bring. And we hope lots of discussion comes from this. So this is just a starting point.
RACHEL WEISBERG: Before we move forward, the PowerPoint is not being broadcast. Oh, there we go. That was magical. Thank you.
REBECCA WILLIFORD: All right. So in part 1, we're going to talk about case examples in disability rights litigation, and we're going to kind of go through sort of four procedural vehicles of issues where there were cases where there were issues that really impacted things in the disability rights landscape this year. So we're going to talk about standing, class certification, attorney’s fees and costs, and post Cummings damages. We're going to do post-Cummings damages light because we have a fabulous panel coming up right after this. Don't worry, we are not stealing thunder. So we're going to jump into standing.
We'll start at the beginning. Standing is the threshold issue. No cases going forward without it. Whether it's organizational or individual clients. You know, standing is a big one. And there was a lot that happened this year. We're going to start with a big case. You can probably guess what it was. And for that, I am going to turn it over to Rachel.
RACHEL WEISBERG: Hi, everyone. Good morning. Thanks, Rebecca. It's really great to be here with everyone. I'm Rachel Weisberg, white woman, mid-40s, red hair, glasses when I'm reading, wearing a black jacket and I use she/her pronouns. So jumping right in to standing. You know, if we're going to talk about the bigger barriers and the threshold issues that we address as lawyers looking at disability rights issues, especially in impact litigation or really any type of ADA litigation, it really only makes sense that we talk about standing, right? This is a big one that we all deal with. And especially tester standing. So given the roller coaster that we've all been on in the last year, and I know a lot of folks here know that the Laufer case pretty well. We thought we would start with it to do some level setting. We have a case where Miss Laufer filed a lawsuit against Acheson Hotels saying that hotels need to include certain information about accessibility on their websites.
The issue in the case was not whether the hotel violated the ADA. That was a non-contested issue. We all knew that absolutely the hotel had violated the ADA. But instead the issue was whether Miss Laufer had standing to bring the case, had the right to have her case heard in court. The hotel argued she did not. Why? Because she was reviewing the information in her capacity as a tester. As a civil rights advocate, as somebody who wanted to make sure the ADA was being enforced. She had no specific intent of staying at that hotel.
As many folks know, she brought similar cases across the country, and courts had treated her cases differently across the country. This particular case was one where the first circuit found that she did indeed have tester standing, but then the Supreme Court granted cert to hear the case. Okay. That's where the disability community comes in, right? We all think this is concerning, we're not sure this is the Supreme Court that we want to hear this issue. And I want to really applaud the efforts of the disability community. There was an amicus brief filed in this case, brought on behalf of 18 different disability rights organizations.
It was an extremely powerful brief that came together to argue. When we're looking at these issues, testers, whether or not somebody is a tester should be irrelevant. Yes, we have standing, but what we should do is look at whether the individual pleaded a sufficient injury and fact. And here, she did that. She pleaded informational and dignitary harm. Because as we all know, the experience and frustration and the humiliation of enduring discrimination, that is and of itself an injury, and that is an injury in fact.
And then the amicus brief went on and said, you know, the fact that somebody is intentionally putting themself into a position to experience harm as a tester should not deprive somebody if they otherwise have standing. And the brief did a really nice analysis about why testers are so critical to the effective implementation of disability rights laws.
Okay. So then what happens? There was a twist of course. Miss Laufer ultimately withdrew her lawsuit, dismissed it, after her lawyer in other cases was suspended and ultimately filed a suggestion of mootness at the Supreme Court.
The Supreme Court had oral arguments anyway but ultimately dismissed the case as moot. So where are we now? Well, courts continue to chip away at tester standing, especially at certain circuits. I think we as a disability community have avoided the issue with the Supreme Court for now. It's something that we need to remain vigilant on. Especially if you read Judge Thomas' concurrence where you see exactly how he would have held had the merits been determined.
So I wanted to really highlight the amicus, because for folks working on similar issues, I think there's a lot of really great nuggets of information that can be reused and recycled in there. So if you're working on those cases, check out that amicus brief. The next case we wanted to talk about is Langer versus Milan Kiser, another example of a case where we have what the court deems -- I will use my own language -- a high-volume litigant. This is an individual, a wheelchair user, he drives a wheelchair-accessible vehicle, and he's going about his normal business, tries to visit a couple different organizations, including a lobster restaurant. Every time you read this case, makes us a little bit hungry. Sounds delicious. But he goes to this restaurant and lo and behold, there is no accessible parking. So what does he do? He's a disability rights advocate. He files a lawsuit under Title III and state law, something that he has commonly done. He's filed about 2,000 lawsuits over the last 32 years.
So the district court found that he had standing. But it did so extremely reluctantly and questioned whether he had a legitimate intent to return based solely on the number of lawsuits that he has previously filed. The district court also found that his testimony was unreliable. Again, based on that extensive litigation.
So what's really interesting in this case is when it was appealed to the 9th circuit, they do a wonderful recap of 9th circuit standing. Anyone litigating in that circuit should check it out.
They do a whole paragraph on what you need to have standing. But then they go on to say that they made clear that the district courts cannot use the doctrine of standing to keep meritorious ADA cases out of federal courts simply because they're brought by high-volume litigants, and that courts need to take a broad view of standing in civil rights cases, particularly the ADA context, given that this is the primary method of securing compliance. So I think another big win for the standing world and the disability world, and one that even though it's in the 9th circuit hopefully can be used across the country as we continue to fight this fight.
REBECCA WILLIFORD: Thanks, Rachel. So we're going to move on from standing to class certification. We love class certification at DRA. It's very key to getting broad relief. And one thing that's interesting in class certification is that while there are many challenges that are popping up to class certification, the disability community is unique in that we are still able to get many large cross-disability cases certified in a lot of instances which I think is really valuable tool where emergency preparedness plans, for example, impact people with all types of disabilities. We're able to get those classes certified. So that's something we definitely want to keep up. So we're going to do a dive into class certification, and happy to toss the mic over to my colleague Jinny Kim for that.
JINNY KIM: Hi, everyone. I'm Jinny Kim, she/her. I have shoulder length black hair with a gray sweater and blazer on. The first case we'll talk about today is Davis versus Labcorp. The counsel in that case brought this good transition case, which addresses both standing and class certification. It originated in the central district of California. It was a class action on behalf of people with vision disabilities because they could not use the eKiosks at Labcorp.
The judge found two classes in that case. First an injunctive relief nationwide class on the ADA, the ACA, and the 504 claims. And the second class was a California-wide damages case or class under the Unruh class. The defendant filed a 23(f) interlocutory appeal which was granted. In the 9th circuit, in an unpublished decision, they affirmed both classes and also the defendant raised the issue of standing for the first time at the 9th circuit. What the 9th circuit said in that case is that there was standing, because one of the plaintiffs, even though he was ultimately able to be checked in, had to go to a staff member to check him in. The kiosk was not accessible, and he intended to use the kiosk.
9th circuit also said that one of the plaintiffs was forced to wait until he was noticed by a staff member, and that he was unable to change personal information through a kiosk and had to actually give that information to a staff member. The 9th circuit said that because the plaintiff was denied effective communication and full and equal access to Labcorp services, that that conferred standing on him.
With respect to the injunctive relief class, the defendant said this should not be certified nationwide because not all blind people want to have the same accommodations. The 9th circuit said this is not about Labcorp's failure to meet preferences but really about the inaccessibility of the eKiosk, which could be made accessible if Labcorp just put together technological accommodations which could address injury to the class. And that even though some people might prefer to use staff members, they should have the option to use the kiosks if they want to.
With respect to the Unruh Act claim, what the defendant argued is that there are individualized damages which can't or shouldn't be addressed on a class-wide basis.
What the 9th circuit said is that they are not required to show individualized harm, but rather the inquiry is whether a class member is subject to the same injuring behavior. It was a great amicus brief drafted by the impact fund and DRA in which 16 organizations signed on, addressing the unequal treatment as a concrete and particularized injury that confers Article III standing and also talked about the meaning behind the Unruh Act.
There was an amicus for the defendant which no surprise talked about why damages classes are too individualized. We also addressed sort of why they thought that class action reform should happen. So really what I read was sort of a rant on class actions, and I can't help it. I'm going to read a gem that I read from the brief. "It hurts the entire economy because attorneys' fees and costs accrued in defending and settling over broad class actions are ultimately absorbed by consumers and employees through higher prices and lower wages."
Little did we know that the access work and the effective communication work we're trying to achieve is actually hurting the American economy. With that, I'm going to turn to the next case, which is AA versus Phillips. That case originated in the middle district of Louisiana. The counsel in that case, there's a long list, but disability rights Louisiana, nation health law program, national center for law and economic justice, NAACP, democracy forward, and others. It was a lawsuit against the state of Louisiana for the failure to provide medically necessary mental health intervention to Medicaid-eligible children. A class of youth was identified, who were both, one, diagnosed with a mental health or behavioral disorder, and, two, recommended to undergo intensive home- and community-based services or IHCBS for treatment.
The defendant in this case also filed a 23(f) petition which was granted, and the 5th circuit looked at ascertainability. What the 5th circuit said was that the intensive home- and community-based services, IHCBS, was not ascertainable because it was unclear which services were included in that definition. So it was vacated and remanded back to the district court.
I think the district court really expected the parties to reach a stipulation and just agree on a really simple definition, which is what I thought would have happened. But actually it ended up being about a 10-month back and forth between the parties. So there was negotiations on the class definition, there was briefing, there was arguments, experts needed to come in, and ultimately the court, district court, accepted the plaintiffs' proposed definition, which was people who were diagnosed with a mental health or behavioral disorder and who were recommended to undergo, quote, intensive care coordination, crisis services, and intensive behavioral services. And those definitions came straight from the Medicare guidelines. And of course the defendant was not happy with the definition, and they filed another 23(f) petition, which is pending in the 5th circuit.
REBECCA WILLIFORD: Thanks, Jinny. So we are going to fast forward to the end of the case when it's time for attorneys' fees and costs. So the law provides for attorneys to get fees and costs for their work in disability rights cases, and this is critical to folks, especially like us who don't charge their clients for the work that we do in litigation. And sometimes this gets turned on its head where plaintiffs can become liable. So I'm going to turn it back over to Rachel to talk about a couple of case developments in this area.
RACHEL WEISBERG: Thanks. So yeah, the threat of costs and potential fees is always of course a huge hurdle when we think of which cases we're going to bring. So I wanted to highlight the Garcia versus Gateway Hotel case. What happened here is that we have a plaintiff who filed a complaint challenging the hotel's reservation system. That was ultimately dismissed on a rule 12(b)(6) motion. They were required to pay the attorney’s fees and costs. Attorney’s fees say pretty easy decision for the court. When defendants are seeking attorneys' fees from the plaintiff, you have to show that really the case was frivolous or unreasonable. And here there's no allegations of that. That argument is out the window.
But then they turned to the question of costs. And for those of us around the country outside of the 9th circuit which I think is a lot of us, we live under this federal rule of civil procedure where courts have the discretion to award costs against losing parties. Well, our friends out in the 9th circuit before the Garcia case, there was an earlier case from 2001 that actually said costs were awarded to prevailing ADA defendants only if defendants' actions were frivolous or groundless, the Christianburg standard. So that was kind of a higher burden for folks to prove. So here Garcia argued that he shouldn't have to pay these costs based on that rule.
But in the Garcia case, the 9th circuit has joined the rest of us, defaulting back to the rule 54(d)(1). They concluded there was an intervening Supreme Court case inconsistent with that earlier decision. So where does that leave us? We're all on the same page now but I think this case is a helpful reminder that courts have discretion in awarding costs, right? And I want to give a shoutout to Brian East who had made some helpful comments on the DRBA website when this case was discussed and even circulated an argument that he successfully made to the courts and just reminded us that there are these discretionary factors that we should be arguing when hopefully we're never in this position but if we are to make to try to make sure that the courts understand that they have the discretion. And our types of cases are where the discretion should be exercised. Some factors are the losing party's limited financial resource, misconduct by the prevailing party which we all have experienced sometimes, sometimes there's these close legal issues, the substantial benefit conferred, prevailing party's enormous financial resource, and our party's good faith.
So again, hopefully we're not in that position, but a good helpful reminder if indeed we do find ourselves in it. And then the second case we wanted to highlight with respect to attorneys' fees is the Kolbe versus Endocrine Services, brought by the Colorado cross disability coalition. This was a case that was brought by an individual plaintiff and the Colorado cross-disability coalition. So Kolbe had gone to Endocrine Services offices with her service dog only to be told she was not able to enjoy services with her service animal so she sued under ADA, 504, and state law, and sought injunction, monetary damages, equitable relief, etc. The trial found for Kolbe for discrimination but not intentional and awarded 20,000 dollars in damages, after which there was a bench trial where the parties were directed to prepare proposed injunctions, with a very successful injunction for the plaintiffs.
What comes next? Then we file our fee petition. As defendants often do, they raised a litany of different types of arguments that we all see all the time, and this is such a wonderful case because they were all rejected. And plaintiffs were able to secure 100% of the fees that they had requested. And I'm sure a lot of these arguments sound familiar, that the hourly rates were excessive. They did this bizarre argument where they combined the attorneys' rates and said that they were like one rate of 1,000 dollatr instead of a couple different rates which was kind of a new one to me. They argued that the hours spent were excessive, that the time was spent on unnecessary tasks, and that they should not have been collaborating, which we all collaborate as lawyers.
So the judge really went through each one and dismissed and explained why all of them were not viable arguments. So a really great decision for all of us who are working on these cases, and definitely one to cite in your upcoming fee petition negotiations or cases.
REBECCA WILLIFORD: All right, thank you, Rachel for that. So we'll give you a very lightning round of post-Cummings damages, as I promised. Again, promoting this panel coming up next by our esteemed colleagues. And I think we all know, Cummings is a case that went up to the Supreme Court, which all the emotional distress damages are not recoverable for the Rehab Act or Affordable Care Act. And watched what has happened after has been important. It's important to clients and it's important as we're strategizing about what comes next. So I'm so happy that so much we'll be doing a deeper dive into this at the conference.
So we are going to touch briefly here on a few cases. So I'm going to go back over to Jinny Kim.
JINNY KIM: Those of us on the DRBA listserv should be very familiar with the Wade versus University Medical Center of Southern Nevada. The jury awarded $50,000 for pain and suffering and expectation interest damages for the hospital's failure to provide an ASL interpreter to a patient. I would also highlight in the case that they also got a great summary judgment order which we shouldn't forget about, which says that consequential damages, damages for physical pain and suffering, and nominal damages are not foreclosed by Cummings, which we'll hear about more in the next panel.
The next case is -- I'm sorry. That's Eisenberg and Baum case. The next case is Hernandez versus Board of Education, brought by Disability Rights Connecticut and Brown, Goldstein & Levy, a case which challenged the failure to provide auxiliary aids and services for an autistic deaf member of the board who spent 2 years requesting basic accommodations, and I mean basic accommodations, which were communicating with her in writing and then requiring the speaker to face her so she could read lips.
Cummings came down in the middle of the case and the jury found liability on both the 504 and ADA claim and awarded nominal damages but not compensatory or emotional distress damages.
And the final case in the post-Cummings issue is Payan versus Los Angeles Community College District. We're all rooting for Payan in this case. Unfortunately a couple weeks ago the court issued a remittitur on this case. We were all disappointed. You will probably hear more about that in the next panel as well. But the court rejected the notion of lost opportunity damages and the loss of educational opportunities. That was a Brown, Goldstein & Levy case as well.
What I want to highlight with the post-Cummings decision is what I appreciate about the discussions happening at this conference, as some of us are grappling with these issues, it really affirms to me and confirms what a great community we have amongst ourselves. I'm learning so much about the issues that people are facing and the information sharing that's going on between the different cases. So thank you very much.
REBECCA WILLIFORD: All right. So now it's time to take a moment. We talked about some good cases and some bad cases as we were moving through the procedural stages of litigation. And now in this second part we're going to talk about some developments and substantive areas of mostly ADA litigation that happened over the last year. And again, there were some really exciting ones and there were some ones that weren't so good. And it's all part of learning and strategizing as we go forward. We're going to talk about, so we couldn't cover it all, but we picked four categories where there's been a lot of substantive case law development this year. We're going to talk about some effective communication cases, some education cases, some Olmstead cases, and some employment cases. So I'm going to dive right in to an effective communication case that DRA worked on with our colleagues at Disability Rights California. This is our McCullough case. The thing that stands out to me about this case is that you could probably do this case in every state in this country.
It's been done in three states that we know of so far. But the issue is that people who are deaf and have IDD are not getting effective communication. They are living, the issue in California that we litigated and settled, was that folks were living in group homes and day programs, and in some instances had gone decades without interpreters and we would see videos that their families had from before they went to live at the group homes where they were signing, they were communicating, and then they just lost their communication skills.
So in negotiating the settlement, it was really important that we got habilitative skills for these folks. There was a Harry M case, a predecessor case to this case in Pennsylvania, and Jinny and many of our colleagues are working on a similar case in Tennessee right now with Disability Rights Tennessee. Almost the identical issue.
So if you hear about this issue happening in your state, please reach out. We're happy to put our heads together on this issue. But in California, we brought a class action against the California Department of Developmental Services, and under the settlement, we got the department to agree to do several things. First they're going to do communication assessments. Just get a baseline of where folks are in their communication skills. They're having a statewide Deaf specialist, there are regional centers throughout the state that provide services to people with IDD, so they're going to fund regional centers to hire Deaf services specialists. They're providing specialized training, developing house mate matching systems for Deaf consumers, because one issue is folks didn't have colleagues to communicate with. So they really wanted that. That will be an option for those that want it. And conducting outreach to get the word out about this.
Moving on from that, we're going to the windy city.
RACHEL WEISBERG: I'm the windy city representative. The ACB of metropolitan Chicago versus city of Chicago is another case that I think we could do in almost every jurisdiction, right? And for folks who are especially interested in accessible pedestrian signals, hopefully you went to the wonderful presentation by the DoJ folks and my DRA colleague yesterday.
But for the rest of us, this is a case DRA brought with cocounsel and the Department of Justice and the U.S. Attorney's Office had intervened and it's been a really great collaboration. Essentially Chicago we pride ourself on being a walkable, wonderful, pedestrian city. We have 2800 intersections that are signalized. And when this case was brought, 1% had accessible pedestrian signals. 1%.
So this case was brought in 2019, I believe. And in 2023, we had a decision on cross motions for summary judgment. So I wanted to highlight a few of the important things that the court held. One is that there was a threshold issue that we face in a lot of these Title II cases which is what are the program, service, and activity here. We and the DoJ had argued that signalized intersections were a program, service, or activity of the public entity. And the court agreed. The court said, of course, this phase has sweeping breadth. We must make sure the grid is readily accessible and usable to people with disabilities.
From there they went on to analyze several different legal theories that we and the DoJ brought. The first one was the question of program access or meaningful access. And this was I think not as challenging of a decision for the court. It was something already decided in the New York accessible pedestrian signals case that DRA had previously brought, but they said, look, when you look at this distribution, the city's current EPS distribution certainly does not provide the plaintiffs or the class with meaningful access and pedestrian signals.
The court did not go so far as to say what would provide meaningful access but they said the numbers we're at now don't do it. So summary judgment granted to the plaintiffs and DoJ.
And that's where the New York case kind of left it. But here in Chicago, the court went even further and said, you know, there's other theories of liability here as well. There was evidence that there had been several new, there was new construction, so new signals put in after 2011, and I think one of them actually had an accessible pedestrian signal. So the court said that also is a finding of liability for the plaintiffs and for the DoJ.
And then the court also said, you know, look at this issue of effective communication. The city, we had brought in our complaint that the failure to have accessible pedestrian signals also violated the ADA's obligation to ensure effective communication. And the city said, you know, that's not what that effective communication stuff means. Effective communication is like these communications with the courtroom or with a police officer, these more substantive communications.
And the court said, there's no reason to draw that false distinction. No, the effective communication applies here as well. That happened in 2023. In the future, what's recently happened in this case is that we, the plaintiffs and DoJ and the city proposed different remedial plans. We just went through a series of briefing on why we think our remedial plan is the superior one. And now we're waiting for the judge to make her decision. So more to come on that.
Okay. And then couple other highlights in the world of effective communication over the last year. I always like to highlight some different DoJ settlement agreements. I think a lot of us like to look at the DoJ agreements to get out some nice nuggets of information that we can use in our own advocacy, so wanted to highlight a recent settlement with Service Oklahoma, which is a state agency, like used to be the Department of Public Safety, and they had a mobile app to do a lot of cool things like creating a digitized version of a driver's license or state ID that could be used in various ways like applying for unemployment benefits or paying at the stores. And lo and behold, shockingly to everyone I'm sure, this app was not accessible.
So the DoJ issued a letter of findings in November of 2023, and ultimately came up with a settlement agreement that Service Oklahoma has to make sure that any of its mobile applications including this particular one has to conform with the WCAG 2.1 AA. And then it has a series of the other types of injunctive type relief we see in settlements about making sure there's an opportunity to solicit feedback, having a complaint process built in, having an ADA coordinator, ADA training, things of that nature. So definitely one to check out if you're doing some website accessibility advocacy.
And then to wrap up the effective communication section of course, the really big news in the world of website accessibility is the first of its kind lawsuit that we know of using the California false claims act to get at the issue of website accessibility, and this was a case brought in partnership with TRE Legal Practice. What happened here is that the plaintiff, Bryan Bashin is blind and was unable to navigate the public park reservation website because it was inaccessible to screen readers. But he took a different approach and the lawyers took a different approach. Instead of filing a traditional ADA or state law claim, they kind of looked at it from a different perspective and said, let's look at what happened. There was the contractor here, who had a subcontractor, and they are these private contractors getting paid millions of dollars to provide this public entity with an accessible website and they have falsely claimed over and over again through the course of the contracting and the process that they have made their website accessible.
Lo and behold, they did not. You know, the False Claims Act is a suit that's brought in many other contexts, and this was one of the first ones in bringing disability-related claim. And in 2019 the court denied a motion to dismiss but the 2023 update is that the parties reached a really fantastic settlement in this case. One, the contractor, the subcontractor, is going to fund an accessibility audit by Prime Access Consulting, a national expert, they're going to remediate the access barriers, and ultimately there's $2 million in damages set between the -- some of it goes back to the government and some of it is for the plaintiff and for attorneys' fees. So I know from my perspective, a really, really exciting and novel approach and one that we can definitely learn from when we seek to be creative in how we do our advocacy.
REBECCA WILLIFORD: Thanks, Rachel. Next we're moving into the realm of education. I don't have to tell you all the barriers that persist in K-12 all the way through higher education and graduate education, and when you look at the lack of representation of people with disabilities in various professions, education and employment are sort of top of mind. And staying vigilant. Making sure people get the access they need for education is critical. We're going to talk about a few cases that had big development there's year. So over to you, Jinny.
JINNY KIM: Yes. So the first case is Perez versus Sturgis Public Schools filed earlier in 2023, the bright light from last year. Perez was a Deaf student who attended the Sturgis Public School District from ages 9-20. He had an aide assigned to him that was not qualified. For over 12 years they failed to accommodate his disability. And his family thought he was on the path to graduate and was told a few months before graduation that he would not get a diploma.
Then we filed an administrative complaint against the Department of Education, and they reached an agreement between the department, the school district, and the family. The agreement said that the district would fund his attendance at the Michigan School of the Deaf. But because he wasn't accommodated for over 12 years, he of course filed an ADA complaint in district court for the failure to accommodate him. And the school district filed a motion to dismiss saying that he should have exhausted under the IDEA, and the 6th circuit agreed with the district court.
In a unanimous 10-page opinion, the Supreme Court said that the IDEA's exhaustion does not preclude his ADA lawsuit because the remedy he sought, compensatory damages under the ADA, is not available under the IDEA. So the Supreme Court reversed the 6th circuit decision. What Justice Gorsuch said is that this case, quote, holds consequences not just for Mr. Perez but for a great many children and their parents. Which is so true. We will take that win, a unanimous one at that.
RACHEL WEISBERG: I'm going to jump in and do the MF case because it's a case I'm working on now. This is a case brought by DRA on behalf of and in collaboration with the American Diabetes Association, and we are cocounseling with Alan Yatvin, a private firm in Philadelphia. This was a case for three students with diabetes. Of course the ADA. And we were successful in obtaining class certification. And in this claim, we asserted that the Department of Education was violating all these 504 and the ADA because of a litany of problems in how they are helping folks in New York public schools manage their disability and diabetes-related needs.
So there were significant problems in unnecessarily segregating students. So when folks had diabetes-related needs, instead of being able to meet those needs in the classroom or most integrated setting, they always had to leave, missing critical class time and other sort of integrated settings. They were often excluded from school trips because there were not either staff to accompany students or trained bus drivers to help facilitate diabetes-related care.
There were significant delays in getting folks diabetes management plans and 504s set up on time such that students were missing weeks or months before the beginning of school.
All sorts of just, you know, absolutely unacceptable types of conduct. So this case is an interesting one in that the settlement was approved in 2023 and we're in our first year of implementation. But from the very beginning, we were able to file and then enter into negotiations. Throughout the course of the litigation, we were continually negotiating discreet issues, filing -- entering into memorandums of understanding with the New York Department of Education, and then only going to court on very specific targeted issues. So it was as collaborative as it could be while still pending in court.
The exciting thing is that the settlement was approved in 2023. There are specifics about what sort of 504 template folks are supposed to use. Training is going to be updated in collaboration with the ADA. The ADA has been attending different trainings to be sure people are people trained adequately. There's specific time lines and standards for how soon individuals need to have their diabetes plans. Ideally for returning students it's before the end of the school year so there are no hitches and folks can just start right away. There are specifications about making sure that folks are getting the treatment they need in the most integrated setting available.
Everyone is like even bus drivers are learning how to administer glucagon, which I know is a big issue for folks across the country. Lots of great nuggets of really helpful guidance out there. And hopefully we will see complete implementation during the next 3 years of our monitoring period, but also a huge issue around the country. So a really great model to use as a starting point.
JINNY KIM: Our last case is Elis for Rachael versus Yale University. This is an organization founded after the suicide of one of the Yale students, and argues about decades-long discrimination against students with mental health disabilities. Yale for the first time allowed part-time study as a reasonable accommodation, which was huge. It allowed students on medical leave to still have access to campus, including resources and campus jobs. It allowed students to still enroll in health insurance for up to 1 year. And deferred to the treating physician's opinion.
This settlement built upon some of the work that the DoJ did with Brown University and with Princeton University as well as a settlement that we reached against Stanford in 2019. So congratulations to disability rights Connecticut and the Bazelon Center for this settlement.
REBECCA WILLIFORD: Thanks, Jinny. We're going to jump into some Olmstead cases. Many of you are experts at Olmstead, but just a quick reminder for those who may not be familiar and are newer to the work. This is our 1999 Supreme Court case that was getting us closer to that goal of the ADA preventing unnecessary institutionalization and integrating people with disabilities into society. But this case held that segregating people with disabilities such as in an institution is discrimination and the public entities need to provide services in the least restrictive setting to accommodate disabilities.
So we are going to go to Rachel. First we'll go to Florida and talk about some non-DRA cases. And then we're going to creep across the south a little bit.
RACHEL WEISBERG: We're going to start with the positive and skim through these Olmstead cases somewhat quickly so if anyone has additional questions we can talk about them at the break but we want to be sure we have extra time.
So the positive we're starting with is U.S. v Florida, a very, very long running complex case brought by the DoJ challenging how Florida segregates and institutionalizes children with complex medical needs. Arguing that their policies and practices placed other children at serious risk of institutionalization. So again, this is a long, complex procedural history on this particular decision that we're highlighting today that happened last year. It was a decision that followed a bench trial. And the court ultimately found for the United States and said that Florida did in fact violate the ADA's integration mandate. And when looking at whether or not an Olmstead claim has been effectively proven, there are several different factors that courts look at. And here the judge went through all the different factors and said, yes, all of these are present here. This is a violation.
So some of the things that the court said is that providing these community-based services to children with these complex medical needs was appropriate. Yes, it is absolutely appropriate, right? Was not opposed by the majority of the children and their families, reasonable accommodations could increase the availability of this community-based services, and it would not pose a fundamental alteration. So ultimately ordered an injunction, saying that Florida needed to take steps to increase the availability of private duty nursing, facilitate transition of children from nursing homes to community-based settings, and improve care coordination. We're not necessarily over. Unfortunately Florida has filed an appeal. But the state pending the appeal was denied so that's good.
The other thing interesting about this case that I know we have big problems with in Illinois and I suspect is the same across the country is that there is a real shortage of care, right? So what do we do about that? In Illinois, in our Olmstead litigation, we've had a big issue of rates of pay. The court acknowledged that and offered suggestions which I thought it was great to have in this court opinion, things like raising the amount of money you pay people. Shocking. Things of that nature. But so I think a really important case and one for us to continue to track in the world of Olmstead.
We're going to stay in the south for our next case and we are going to go to the other side of the, I don't know, happiness. This is a really bad case. This is the United States versus Mississippi. And I think when this came down, folks who do Olmstead litigation were really shocked and very concerned, because ultimately this is a 5th circuit case that challenged how Mississippi provides mental health services. And the DoJ also brought this case saying that Mississippi had failed to provide necessary integrated community-based mental health services, and as a result, adults with mental health disabilities were really being forced to secure access to care in segregated state hospitals.
And guess what? The Department of Justice won at the district court level. And the district court entered an injunction requiring the state to develop and implement specific measures about coordinating care, diverting folks from hospitalization, and then the shocking thing that happened was that the 5th circuit struck down that injunction. And what they did is they held that Olmstead does not cover risk of institutionalization claims and that when you look at the text of Olmstead and at the regs and ADA, all it covers is institutionalization itself, not risk of.
That is not how this has been, Olmstead has been applied throughout the country. Risk of institutionalization I think is pretty well settled in other circuits. So really, really concerning 5th circuit case. But I will end on a positive note. I am told I am a Midwesterner who has Midwestern optimism so we'll end with Fitzmorris versus Commissioner. This is another at risk institutionalization case. So many of our Olmstead cases are about at risk of institutionalization. This is a case brought by lots of different folks in the room. This was a case brought by disability rights New Hampshire, New Hampshire legal assistance, AARP Foundation, and Nixon Peabody.
Here the celebration that we're having is that a class was certified on behalf of folks who are waiver participants who have been placed at serious risk of unjustified institutionalization because of the failure to provide long-term supports. And the plaintiffs in this case had identified several different system-wide practices that were causing gaps in coverage. So what was happening was that there was just a series of home care workers who were just not showing up without notice. And they had class member after class member talking about how they just did not have the care that they need. And an expert analysis even showed that over 50% of individuals were having problems securing ongoing assistance. So the class was certified. The court even addressed and distinguished the U.S. versus Mississippi case. So we're glad to see that's not just having ripple effects across the country. And the 1st circuit here denied interlocutory appeal. So we'll continue to watch that one.
REBECCA WILLIFORD: Thank you, Rachel. Next we will talk about some ADA indications around accommodations and modifications. We're highlighting a case in Washington, a case with people incarcerated who are transgender, as well as in San Francisco a case related to the unhoused population. So I'm going to throw it over to Jinny to talk about those cases.
JINNY KIM: I know there will be a panel at noon on transgender prisoners so I will just give a teaser for now. The first case is Disability Rights Washington versus Washington Department of Corrections in which DRW got a comprehensive settlement against the Department of Corrections including a statewide tool kit for transgender people, training for staff, a designated gender-affirming mental health specialist at each major prison, a Department of Corrections gender-affirming specialist available for patients, as well as ensuring that the Department of Corrections accommodates patients' disabilities.
In addition, Brown, Goldstein & Levy obtained a TRO on behalf of Chloe Grey, an incarcerated transgender woman in a men's facility who faced retaliation after she joined a lawsuit. She was sent to solitary. She was threatened, harassed, and assaulted. And she was denied her consistent hormone treatment. The TRO said that the department had to video record her every time she received hormone treatment, which is huge. For the officers who were involved in the assault had to stay away from her. And she had to be evaluated to transfer to a women's prison within 30 days. So congratulations.
The next case is the coalition of homelessness versus city and county of San Francisco, brought on behalf of seven unhoused folks in San Francisco. It's a anti-houselessness case around the country. Alleging constitutional and ADA claims, the district court entered a preliminary injunction with 9th circuit affirming it. And of course my own city asked for a stay because of the Grants Pass case pending which I will talk about towards the end of the presentation.
REBECCA WILLIFORD: Thanks, Jinny. So I mentioned education and employment are really the key to getting people with disabilities integrated into society. And we're going to highlight next a couple of employment cases. Over to you, Rachel.
RACHEL WEISBERG: Okay. I'm going to kick it off with Orozco versus Garland, litigated by several folks in the audience which is always the scariest part of doing trainings when you talk about cases that people in the audience litigated, so correct us if we're wrong. This was brought by Tim Elder, Alex Brodski, and Brown, Goldstein & Levy worked on the case as well. But this is a really interesting case about the intersection between employment and assistive technology.
So here we have an FBI employee who is blind who experienced trying to do his job and being faced with the barrier of having inaccessible software in the workplace. But what makes this case unique is that he's a federal employee. He worked for the FBI. Instead of going the ADA Title I route, he brought a case under the Rehab Act and said, not only do we have 501 for federal employees but we have 508 which says federal agencies need to make sure that their information technology is accessible.
So he brought a claim under 508. This was really one of the first of its kind of an employer attempting to bring a claim under 508 so the court didn't know what to do with it but luckily we had wonderful advocates helping the court reach the right conclusion.
At first the lower court dismissed saying 508 doesn't apply to employees and it looked through the different statutory language. That was reversed on appeal at the D.C. circuit, which said, no, you know, the 508 has a private right of action to any individual with a disability. Guess what? An employee is any individual. Therefore, you know, an employee is able to bring these types of claims. There is a requirement for administrative auction. The employer did it. The fact that he's an employee does not take him outside of scope of this law.
So the case is pending in the district court. Can't wait to see how it turns out.
Moving on to the EEOC versus Charter Communications. For those of us that do employment work know there's a big issue in the courts about whether or not employers have an obligation to accommodate individuals when they have barriers getting to the workplace or commuting-related barriers, as opposed to barriers in the workplace. You might think, of course you should do that. I would agree. But there is some distinctions in the court.
So the EEOC versus Charter Communications case is brought by the EEOC on behalf of an employee who had cataracts who worked at a call center. He could do his job. There were no allegations or concerns he couldn't do his job. But because of his cataracts he wasn't able to commute home in the dark. He had tried public transit, there were other options, nothing else was available for him. His only option was to have a rescheduled shift, to work a little bit earlier in the day. And he asked his employer who at first said sure. Then after 30 days the employer was like, just kidding, you have to work the later shift.
So the legal issue in front of the 7th circuit is whether an employer has to consider reasonable accommodations related to an employee's commute. The 7th circuit which doesn't always get it right got it right and they reviewed different approaches from other circuits and then they said, you know, if an employee's disability interferes with his ability to get to work, that employee may be entitled to a work schedule accommodation. If commuting is a prerequisite to an essential function, which getting to work in this particular case was. Attendance was an essential function. So I think it was a right decision.
The other interesting part about this case is that all of the facts here happened before COVID. So the court went out of its way to say, look, in this case it was undisputed, physical attendance at the workplace was an essential function, not an issue in this case. But now we have a new work life, right? Lots of people work remotely. The workplace has changed. So they said, basically at this point we're not so certain that physical presence in the workplace is an essential function. Which is a great thing to have out there for folks who are litigating issues about remote work as a reasonable accommodation because it's signaling that that is something that the court could accept, which is cool.
And then I'm going to wrap up with Hopman versus Union Pacific Railroad, which raises another hot topic in the employment world. This is a case that did not go our way, spoiler alert. But here we have an employee who had PTSD and migraines resulting from military service. He had a service animal that helped ameliorate a lot of his symptoms of his disability. He worked as a conductor at a railroad and asked to bring his service animal to work.
The employer said no. Case went to a jury. The jury found for the plaintiff. But ultimately at the 8th circuit, the district court ultimately found a motion for judgment or granted a motion to the employer affirmed at the 8th circuit and here's why. The employer argued and the 8th circuit agreed that he did not have a claim because he could perform the essential functions of this job. So as a little bit of background, when you look at the ADA, there's generally three categories of reasonable accommodations: An accommodation to the application process, an accommodation because you are unable to do the essential functions of your job, or having equal access to the benefits and privileges of your job. That third category doesn't have as much litigation out there but it is so important. Think of all the different people out there who can do the essential functions of your job but maybe you're doing it with pain or with mental distress. So don't we as employees have the right to do our job with the same benefits and privileges as our nondisabled counterparts without pain, without mental distress?
People all across the country have bought that argument. There's been great case law about that but now we have this 8th circuit case that says no, a benefit of employment has to be tangible, like access to a holiday party, that type of thing. Which is going to really narrow the scope of this type of accommodation request. So an unfortunate case. We have a similar pending case in the 2nd circuit right now, Tudor versus Whitehall that we should keep an eye on.
REBECCA WILLIFORD: Thanks, Rachel. We're going to do a lightning round around cases to watch in addition to that one from how we respond to people in mental health crisis to getting tickets to the baseball game or going to Six Flags. So here we go. Buckle up. Bread for the City versus D.C. This is a case to watch. This was highlighted yesterday. And for folks who have not read this statement of interest, that is your homework for today. It is so great. This is a case brought by Bread for the City, challenging D.C.'s emergency response system saying, and it's just like a mind blower, like hey, if you have a health emergency and you call 911, guess who comes? Paramedics. How quickly do they come? Within 5 minutes. What happens if you have a mental health emergency? Police officers come.
And they do have the decision to call mental health trained folks but if they do, you wait a long time because it's under resourced and underused and that alone is discrimination under ADA according to this statement of interest. So we're waiting on the motion to dismiss. Really exciting case, and I think a game changer in how we look at these types of cases.
Access Living versus White Sox.
REBECCA WILLIFORD: The joke here about the Cubs?
RACHEL WEISBERG: I guess. So I don't have a good joke, though. This is a case of Access Living versus White Sox. This is a case saying the White Sox is selling ADA-accessible seats but not on your website. And you're not selling them in a way equal to how other people purchase their baseball tickets. So people with disabilities don't have the same option to buy them. You have to call to make the purchase, you're limited in the available seats, and you have limited selection. For those of us who have baseball fans, that's not equal access or how it should be. So to the White Sox's credit, pretty quickly after this case was filed they've been in settlement conversations so case to watch. Hopefully we'll get a settlement agreement out of that one as well.
And then Vargas versus Quest Diagnostics I know a lot of us are watching, on that same issue that Jinny spoke to earlier about accessibility of kiosks. This was a case brought by a case of blind individuals who used a kiosk to check in. There was a great decision on motions for summary judgment and then a week-long bench trial where we were waiting to see how is the court going to grapple with this issue of accessibility of kiosks. And the court granted a permanent injunction, but they didn't require that the kiosks themselves actually be made accessible.
They just said that Quest needs to come up with a system to provide people to help make sure folks are able to check in. And the thing I think was especially frustrated is that part of the rationale of the judge is that we have the looming potential regulations for kiosk accessibility, and they said, you know, it wouldn't be fair to Quest Diagnostics if they had to redo their kiosks and then after that we have these regulations and they have to do them again. So I don't know what world they live in that they think we're getting these soon, but it's now on cross appeal at the 9th circuit. An important case with fantastic lawyers on this case. Hopefully it's one we will see some good results at the 9th circuit.
JINNY KIM: Another case to watch is in eastern district of California, Patterson versus Six Flags theme parks, a case brought by a Deaf manna certificating that Six Flags must provide him with sign language interpreters for attractions that involve narration as well as to communicate with ride operators. Motion to dismiss in January 2023 was denied. And the court said a communication barrier only needs to interfere with the full and equal enjoyment of the facility.
There's a pretrial conference set for next week. Good luck to the trial team. The next case is city of Grants Pass versus Gloria Johnson pending in the Supreme Court. That case, 9th circuit already held that cities cannot criminalize or fine people for sleeping outdoors if there is no inside space available. It's an extremely important case that regards the rights of unhoused people. There's an amicus brief going on being coordinated. That's definitely a case to watch. And the case will be heard on April 22 for anyone local.
Last case is FDA versus Alliance for Hippocratic Medicine. Interesting work done in the reproductive justice space. In this case, they were sued to remove abortion medication in all 50 states. The Supreme Court blocked the decision. In this case, there were 35 different amicus briefs filed including one for the disability rights organizations which talked about the disproportionate impact that medically unnecessary restrictions have on people with disabilities, including the fact that people with disabilities have a significantly higher risk for severe pregnancy and birth, the unequal access to healthcare, including abortion care, and the physical access barriers as well as transportation barriers.
That case is set for hearing next week on March 26th. So another big case to watch. The amicus effort in that case was coordinated by DREDF and pro bono firm Alan and Avery.
REBECCA WILLIFORD: Thanks, Jinny. As we wrap up, we want to share a few parting thoughts about anticipated developments, ways to protect and advance disability rights going forward in our work, and this is just sort of the beginning of the conversation, and we look forward to continued dialogue. But we did want to touch on some of the strategies. So the first is we've got to remain vigilant to future threats to meaningful access. This group came together when CVS and Allied Community Colleges came down. Judy Heumann did a lot to mobilize the community and political efforts and it's important that we stay vigilant to that. We sadly will not have her for the next threat to meaningful access. But we're working to track cases that are filed by others and figure out when we need to mobilize. The DRBA listserv is so good at this, to keeping that up as the community is really important.
We're also watching developments with chevron. I think there's two cases where Chevron deference to regulators is at risk. We really do rely on DoJ, Department of Education, Department of Health and Human Services, and I think we're still waiting to hear on the two cases that are pending in the Supreme Court. Please correct me if I'm wrong. But I think reconvening when we get those decisions will be really important if we need to take action.
And then just as a final strategy, when sort of the ADA and the Rehab Act or whatever federal statutes aren't quite working, don't forget about state and local laws. Many of you use these all the time. In California, we've really seen lots of changes and challenges to our state laws. After the Jenkins case, the California Disabled Persons Act became more challenging. We also have the Unruh Civil Rights Act which is becoming more challenging. And no longer applies to public entities and is requiring to show intent when you're going outside of the ADA, which is making it really hard when there's no brick and mortar connection.
So there is some leverage in California still but it's dwindling. We've had some success using the New York City human rights law. When we sued the New York MTA, no one said it could be done because it was written into the ADA regulations that they were exempt, and we were able to use the New York City human rights law to get a great settlement and now we're going to go from 25% accessible stations to 95%. So don't forget about resources like that.
And I think this Illinois Civil Rights Remedies Restoration Act, which was really spearheaded by another community member who is sadly no longer with us, Andres Gallegos, who did a lot of great work and advocates in Illinois. But this is another state law that's in our pockets that we can use. And I'll let Rachel say a word about that before we open things up.
RACHEL WEISBERG: For folks who don't know, I'll give you the 1-minute version on this amazing law. Andres got a group of us together out in Illinois and said, we're in a progressive state, let's do something. So we started brainstorming and we came up with this law that was somewhat based on the Unruh Act, but it was basically supposed to be like a direct reaction to Cummings and we presented it to the state legislature as like hey the Supreme Court is taking away our rights, all we're trying to do is get back to where we were.
So what this law says is that if there is a federal violation of any sort of spending clause litigation and we also threw in Title II, it creates a state court cause of action solely for emotional distress damages. Which is amazing.
(Light applause).
It was such a group effort. I have to say like -- oh, and we also added in like California state law that there's a $4,000 statutory penalty. And we didn't know -- we didn't think any of this was going to get through and I don't know what happened but it just like flew through all the Illinois General Assembly. So we're working now to try to find good cases to make sure we're the ones bringing this law and making sure it's implemented effectively.
But you know, it was like a pie in the sky idea that really worked. And not every state will be able to get something like that, but I think a lot will so it could be a great way to address the Cummings case as well. And we'll keep you posted. Hopefully next year we'll have some good case development under that law.
REBECCA WILLIFORD: Thank you, Rachel. With that, we have 5 minutes. We are happy to take questions. We know we left out some cases. I know there was the great Armstrong decision yesterday that our friends at Rosen, Bien, Galvan & Grunfeld wrote to the listserv about. But we're happy to take questions.
RACHEL WEISBERG: Or tell us what we missed and what you're excited about.
REBECCA WILLIFORD: Yes, Dan Goldstein. Wait for the mic.
SPEAKER: I can usually be heard without it. I just wanted to point out that the California case that you discussed was borne in this room when Michael Alan did a presentation that set Tim Elder's hair on fire and Michael tried to discourage Tim with all the different pitfalls. There may be other unrecognized children at this conference and the DRBA conference, but it made me want to thank Dr. Maurer and the NFB for hosting this conference now for 16 years because if that were the only thing it produced, it would have been worthwhile.
RACHEL WEISBERG: I love that so much. Thank you, Dan.
SPEAKER: I had a question about the I guess the Laufer case and other cases about standing with, quote, high-volume litigants. I'm wondering if you know if the plaintiff, if Laufer or any other high-volume litigants have made efforts to like settle with the entities they're suing before they filed suit? And if not, I wonder if making efforts to settle before filing would make courts like look more favorably on these litigants? I'm just wondering if there was any commentary in these cases about that or what you thought.
REBECCA WILLIFORD: I think often these cases just are filed but there's so many of them, there's not a lot of hard data on it that I am aware of. But others here might know.
RACHEL WEISBERG: I think there are comments in several different cases involving Miss Laufer and others about trying to settle, and I think the court questions whether they're settling for injunctive relief or just monetary relief or attorneys' fees. So I think there are unanswered questions that we don't know everything that goes on in those different cases, but you know, I think maybe it would help the court but I also don't think that anyone, you know, we are 34 years past the ADA and I think people have different legal strategies and there's lots of different strategies and lots of individuals, and we always send a letter before we litigate. That's not everyone's practice. And I don't think there's any judgment in how people choose to enforce their rights.
SPEAKER: This is Al Elia. Feel free to tell me this is too big a question and I should pitch it as a panel for next year.
REBECCA WILLIFORD: I think we have 30 seconds. And the mic is going to disappear in a minute.
SPEAKER: You talked about class actions and advantages and I think you talked about a case in Tennessee. I was just wondering what you think the sort of advantage and disadvantage of class action and associational advantage.
REBECCA WILLIFORD: Why don't we talk about it on the break. Thank you. I think we are at time.
SANHO STEELE-LOCHART: Can they turn my mic on?
REBECCA WILLIFORD: Again, thank you so much to the NFB for hosting us. This conference is so wonderful and so many collaborations and cases come out of this. And thank you to the tenBroek planners.
SANHO STEELE-LOCHART: My mic is off. Oh, there we go. Look at that. The AV fairies are doing their magic. Oh, man, I want to know the sign for fairies. I'm going to ask later. That being said, did we have one more question? I heard we had two hands. Al's and someone else's. Well, I'm not hearing anyone.
REBECCA WILLIFORD: Someone is running.
SANHO STEELE-LOCHART: There was no audio description.
SPEAKER: When you work as DRA, how do you identify what cases would make good impact litigation?
REBECCA WILLIFORD: So we're always on the lookout for systemic issues, and those come to us through a variety of ways, through established relationships with disability rights organizations, they come to us through co-counsel. Often attorneys are working up cases and they realize oh, my gosh this is a systemic case, this should probably be a class action so we'll get a call to come in on those types of issues. But whenever there is a policy or a barrier that's impacting people with disabilities, all in the same way. So an entire subway system without elevators. You know. Meaning that people with mobility disabilities who can't use stairs are not able to access the system is the classic example. These college mental health policies that require students go on involuntary leave rather than getting the mental health treatment they need is another example of policies that apply across the board.
SANHO STEELE-LOCHART: Thank you again to our incredible panelists. If we could please get a warm round of applause.
[Applause]