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.
REBECCA WILLIFORD: Thank you everybody for being here with us on this Friday morning.
Happy Friday, you all made it to Friday. My name is Rebecca Williford, and I am here with my colleagues from Disability Advocates Rachel Weisberg and Tom Zito and we are so happy to be back for year two.
Disability Rights Advocates or DRA.
You may have noticed there's a lot of organizations whose names start with disability rights we all love each other and we often get confused. Just as a quick reminder for folks who aren't familiar with DRA. Our affect us is on impact litigation to advance disability rights.
We were founded in 1993 by Larry Paradis and Sid Wolinsky. They saw the need for the ADA.
It was a beautiful statute on paper, but they realized without enforcement the burden to enforce the ADA had been put on disabled people who often weren't going to be able to afford an attorney to enforce their rights.
DRA came into being because they saw this great need to enforce the ADA when it came to the systemic barriers.
They started this nonprofit and sort of -- our roots are in Berkeley, but today we're very much a nationwide organization. They started to dismantle barriers from coast to coast, whether it was sidewalks, transit systems, education systems.
We carry on that work today; we carry the torch working with so many of you.
We're so, so grateful for this community. Many of you are our co- counsel, our thought partners, our shoulders to cry on, our friends to toast the great wins with. So thank you so much to all of you for being here.
I'm going to make sure other slides are ready.
Our presentation today -- and sort of litigation also I always like to say, litigation is one tool in the toolbox.
It's our favorite tool. Litigation is our love language.
Everything always starts with a letter.
Sometimes entities come to the table as the litigators in the room know and you can work out a really great deal, but most of the time when you're trying to move these mountains, it takes litigation and often many years of it.
This, you know, litigation is one tool in the box. And when litigation isn't the right tool, we're often calling on other partners who are doing critical work in the policy and other spheres.
But this presentation will focus in on the impact litigation that has moved the ball forward.
Boy, do we have our work cut out for us. We're going to dive in. This presentation is going to be in three parts. Some are going to be happier and some sadder than others.
We're going to start with the hardest stuff, that's going to be sort of part one is what I call the Supreme Court induced chaos.
It's not particularly specific, but it sure does impact all of the litigation that we're doing in the disability rights space. Then part 2 is going to be disability specific by topic area, and there's some really, really incredible wins. And these are by no means these are not just DRA cases; these are all of our cases.
If we get anything about any of your cases wrong we owe you a drink or your favorite snack so just let us know.
Then the third part is you know interesting, scary, unknown, sort of what we're watching, sort of discussions of the road ahead.
Without further ado we will dive into part 1. And this part is going to be in sort of four subsections.
Of course we are starting with standing. We know there's also been some great panels on Cummings and Loper Bright, so we will not spend too much time on those, but we wouldn't be doing the topic justice if we didn't talk about them a little bit.
Then of course attorneys' fees.
We're going to start, I'll pass the mic over to Tom in a moment, who is going to talk about standing.
Last year I think this time we were talking about what happened and as litigators standing is critical. We've seen it being chipped away at. We've seen different threats come at standing.
But it all starts here and if we don't have standing, we don't have cases.
I'm going to hand it over to Tom to talk about what the Supreme Court got up to in this world.
THOMAS ZITO: Thanks, Rebecca. So the first case that impacted standing, at least from the Supreme Court last year was FDA v. Alliance for Hippocratic Medicine. This is the challenge by antiabortion doctors and organizations, and the Supreme Court punted on the merits of that case, but they kicked the doctors and the organization out on the basis of standing.
The principal standing issue there for, as relevant to our cases, is organizational standing, direct organizational standing.
While the court didn't expressly overrule havens realty, which had been the bedrock on this. It did note that the court said, you know, that an organization has not suffered a concrete injury caused by defense action, can't spend its way into standing. So it required that organizations -- seems to require at least that organizations showed a harm to their core mission or core business practices.
This is now percolating through the circuit courts.
I'm going to come back to something -- I want to go through the circuit courts, so if you can advance the slides but then I want to come back to a pays of FDA that Justice Thomas addressed in his concurrence at the end.
The first, there had been four circuits to wrestle with this issue, the 9th, the 4th and the 6th Circuit. I had a whole slide on Arizona alliance for retired Americans v. Maze, that was the 9th Circuit in a split decision relying on FDA said that an organization is harmed only when the defendants' action directly harmed already existing core activities.
Judge Nquynen dissented, there was an en banc position with an amicus brief with organizations headed up by National Fair Housing Alliance and others. That has been taken en banc so the 9th Circuit that's vacated the decision -- depublished the decision, and we'll hear that en banc so stay tuned on that one. The other two circuits that have wrestled with this are the fourth circuit and the sixth circuit.
The 4th Circuit in a voting rights challenge, Republican National Committee v. North Carolina state board of elections did find that the RNC and the local Republican party had standings. It applied its own precedent interpreting havens said when an action impairs an organization to carry out its mission and drains the organization's resources there can be no question the organization has suffered an injury, in fact. So that's a little bit echoing the old Haven standard of diversion of resources and frustration of mission.
But again, I think we need to stay tuned and see how this gets interpreted further in the 4th Circuit.
It did also note that mere expense was not enough, and it emphasized that an organization can't spend its way into standing.
The 6th Circuit punted a little bit. There were two, actually three cases that were in front of it. Two of them were from the fair housing center of metro Detroit.
The 6th Circuit remanded both of those cases.
They were appealed prior to FDA being challenged, I believe, coming down, and so they remanded to the district court for further fact finding to allow the organizations to plead or provide facts showing standing under FDA.
There was a -- the third case that was heard, Tennessee conference of NAACP v. Lee, that case I believe is still pending, I haven't checked yet, but the plaintiffs asked for the 6th Circuit to remand them back to court for similar fact finding for the NAACP to show that it had standing. There are a few just highlighting a few district court cases that have come down.
Uth Carolina state conference of NAACF v. the South Carolina Department of Juvenile Justice. There are standings to individual plaintiffs but also to the organizations there. The court found standing for the South Carolina P&A which is a youth defense criminal defense organization.
It did find that justice 360 had shown standing where had shown the conditions at the department of Juvenile Justice caused their juvenile quote to show up to their attorney visits sleep deprived, exhausted and anxious that they struggled to focus.
And they detailed how the conditions in the juvenile justice centers significantly increased the time that it took justice 360 to represent their juvenile clients thereby hampering their missions they're able to show organizational standing in that matter. The other case was a court case out of the DC district court where it found that there was no standing where an organization asserted that it was forced to study an issue. The DC district court apparently was looking at that as spending its way into standing.
Kind of in wrapping up quickly on this issue, stay tuned.
I think going back to the FDA case, one of the issues that Justice Thomas in his concurrence there, apparently telegraphed that he thinks associational standing is not allowable under Article 3. That essentially that any third party stepping into the shoes of the injured person is inappropriate, he said.
Associational standing is simply another form of third party standing and the court has never explained or justified either the doctrine's expansion of Article 3 standing in an appropriate case which should explain how the constitution permits associational standing.
Again, stay tuned. I don't know what's going to happen there, but I can't imagine it's going to be good.
REBECCA WILLIFORD: Thanks, Tom. Obviously this is a really critical issue. We're all going to be keeping a close eye on and we'll be working together to do everything we can to fight against anything bad that comes down.
The next topic under the Supreme Court induced chaos that we're going to talk about is Cummings, post-Cummings damages.
Many of you all know and are very deep in the weeds on the path where Cummings is a case that went up to the Supreme Court a couple of years ago which held that emotional distress damages were recoverable in private actions either to enforce the Rehab Act or the Affordable Care Act and watching what has happened after this has been really, really important. We'll touch on it here.
I know there's been an in depth session already at the conference on it.
We would be remiss if we did not dive into this one a little bit. So I'm going to pass the baton to Rachel for this one.
RACHEL WEISBERG: Thanks, Rebecca, and hi everyone; it's been so nice spending time with everyone the last couple of days. So we're going to continue on the potentially sad pessimistic, but I'm going to offer a glimpse of optimism because of some of the wonderful work that folks in this room are doing.
So the reason you know that we are talking about Cummings, and when the spreadsheet court said that emotional distress damages were not available, they did so because under 504 and the Affordable Care Act, because they were spending clause statutes.
That left over a question of what about Title II of the ADA?
Unlike 504 and the Affordable Care Act are not spending clause statutes. They are statutes, the ADA was passed under the commerce clause and under the 14th amendment.
Well there's an argument when you look at the remedies under Title II they incorporate the remedies under 504.
Based on that there's an argument that well, Cummings also says no emotional distress under the ADA.
But there's another argument again, no, Cummings was under spending clause and the ADA is not under the spending clause.
There was an unknown question and I think a lot of us were anxiously awaiting to see what are the courts going to do with this question.
Well my depressing news is so far we have two circuit court cases and both of them have said unfortunately that no, because the because Title II incorporates the remedies of Rehab Act, emotional distress damages are not available. So those two circuit court cases, the first is the second circuit in Doherty v. Bice.
This is a student who filed a claim against Purchase College and there the court was pretty clear we have the language on the slide that says because recovery for emotional distress damages is unavailable under the Rehabilitation Act's cause of action, we now hold that such recovery alike wise under available under Title II of the ADA which explicitly borrows the remedies, procedures, and rights of the Rehabilitation Act.
Fast forward we have another circuit court decision, from the 1111th Circuit it's AW v. Coweta county school district also an education case.
It's one of these cases that's just hard to read the facts about students who are being abused by the school.
There the case went up to the 11th Circuit. The 11th Circuit can also affirmed the dismissal of emotional distress damages based on that same rationale of the corporation. Even as we know if Cummings is going to apply to Title II, there are other ways to get at damages and at least in the 11th Circuit there was a recognition of that and the case was remanded back to the district court to consider other types of harm, compensatory, at least there was that recognition.
Far the fifth and the 9th Circuit have punted on the question, and other courts have not yet considered it.
Next slide. Why do I say there's a glimpse of hope? I'm going to look right at Jessie.
We're not done yet.
We've got a lot of other circuits who have not yet decided, and there's a case pending in the 9th Circuit right now that we're going to get another decision on. So folks I'm sure have heard of Payan it's a case going on for years and years. It's a really important case talking about the accessibility of course materials at post secondary institutions.
I'm not going to get into the whole history. There's a really extensive one before 2023.
There were two trials, there was an appeal. The thing I want to focus on today is that in 2023, right on the eve of the trial, you know months after Cummings had already been decided, for the first time the college said wait a second we can't be arguing about emotional distress Cummings, applies Title II of the ADA.
The injury find that the college had violated the ADA in 14 different ways, nine of which were done intentionally. They awarded some pretty substantial damages to the plaintiffs 200,000 dollars for one, and 24,000 dollars for another.
I think that's where we were at last year when we presented on this case. And you know, unfortunately shortly after that in 2024, the court ended up reducing the damage awards pretty significantly based on several things that really focusing on Cummings. So this case has been again appealed to the 9th Circuit, both challenging that damages reduction and challenging the scope of the injunction.
There's a few different arguments that are pending on appeal.
Me of them have to do with, you know, this defense was argued years after all of this other information.
Another one is about well wait a second, there's all of these other different types of damages that can be awarded like this loss of educational opportunity.
But for today's purposes there's a thoughtful argument saying Cummings does not apply to Title II and the argument, and my friends can correct me if I'm getting in I of this wrong, but the argument is there's actually the Supreme Court case from 1992 that says when you're looking at what -- you need to do a more contextual analysis.
What was the intent when the Congress incorporated the remedies of 504 we have to look at what the intent was at the time of the incorporation. And of course at the time of the incorporation, we thought emotional distress damages were available.
We'll see what the 9th Circuit has to say, but I am remaining optimistic for now.
Stay tuned.
Also really fabulous amicus brief authored by a bunch of wonderful folks around the room. So great advocacy there.
(Applause)
My other glimpse of optimism and maybe this is just for folks who are lucky as me who live in Chicago or other progressive areas, but I highlighted last year that in response -- there's been lots of interesting discussions and conversations about what do we do in response to Cummings. In Illinois, a group of advocates got together really spearheaded by the late Andre Scaevos and a number of us got together, and we thought what can we do here? We have an environment where people in the general assembly want to help.
So we came up with this concept of can we come up with a state law that provides a state court or a state law remedy for a violation of the Rehab Act?
We just kind of made of this concept borrowed from other principles and we were able to successfully pass a state law called the Illinois civil rights restoration act.
Essentially what it is if a plaintiff can prove a violation of any spending clause legislation, including 504 or the Affordable Care Act, then there's a state court remedy for emotional distress damages and it basically seeks to undo Cummings.
Then because we were feeling a little bit brave we added in a 4,000 dollar statutory minimum.
That somehow flew through the general assembly and passed and it was a shock to everyone and it was incredible. We've been anxious to see how is this going to play out and we've been having ongoing meetings and I was excited to report and see that it actually has made a big difference. I think we can say from an informal perspective access living and DRA have a case right now about healthcare accessibility called Canellada v. Preferred Open MRI.
We've gotten farther because of this act than we would have gotten otherwise.
There was a federal decision that was not an ADA case, it was a Title IX case it was going to be dismissed, and the plaintiff moved to amend the complaint to include the state law and that was granted.
Then there was a motion in limine to get rid of the distress damages that was denied and the case was settled. That was cool to see.
I know that's not an option for everyone but folks who are in progressive areas and want to talk about how we did this, I point you to Charlie who was down in Springfield and testifying and I think it's a really helpful thing for folks in Illinois.
REBECCA WILLIFORD: Thank you, Rachel. It's so good and important to see some of those creative strategies that are coming -- that are state specific, especially in this moment as we are fighting against the tide. Speaking of fighting against the tide, we have one more topic to talk about that's a little not
RACHEL WEISBERG: Two more.
REBECCA WILLIFORD: A couple more topics that are a little more doomsday but we're getting to the happier part, we promise. So last year we were bracing ourselves for the undoing of Chevron deference and unfortunately we got it. We've talked a lot of the conference about Loper Bright and we're going to spend just a little bit of time talking about Loper Bright and sort of what has come after and thank you so much to this community, as we have all strategized together about how to continue our important work in spite of it.
We're going back to Tom for more uplifting news.
THOMAS ZITO: And I promise I won't be the doomsday doom and gloom deliverer for the entire presentation. I'll try to get some good cases in here.
But Loper Bright is -- I think this was discussed yesterday by panelists in several sessions so I won't belabor it.
It's part of a trifecta of cases upending administrative law along with Corner Post and SEC which doesn't really effect our practice that much but requires jury trials for any damages.
The next slide. So I just want to talk about a few cases that have come out, kind of interpreting Loper Bright or at least looking at Loper Bright. Sutherland v. Peter son's oil service is a 1st Circuit case where the issue where the nature what's the meaning of a disability under the ADA title I.
The district court held that plaintiff was not a qualified person with a disability because of a knee injury.
The 1st Circuit reversed and it actually looked to both the ADA amendments act and the specific grant that Congress gave the EEOC to issue regulations implementing the definitions of the ADA and cited that this was one of these situations where Congress had expressly delegated that authority to the agency, kind of short circuiting a Loper Bright issue.
The next cases we have are a couple of district court cases. I might get these names wrong I apologize, Stiner v. Brookdale senior living, which was brought by some folks in the room, this was -- this is a case challenging the construction and access barriers in a variety of nursing homes and facilities throughout the state of California.
There, this was a little bit more cautionary, but there the court found that new construction was -- that the ADA discrimination occurred when the construction failed to comply with the ADAAG standards. The current owners of the facilities weren't the ones who actually constructed the facilities. And held that the district was bound by the ninth circuit precedent on this market.
But it made the comment that given Loper Bright, it was wary of imposing such a sweeping obligation to remediate based solely on regulations rather than on the statute but the district felt its hands were tied so we'll see what happens with that case as it goes forward. The other one was similar, Sokol v. Fresh Clean Threads, Southern District of New York case, noting that interpretive methods relying on -- this was looking at 2nd Circuit case law it noted that those methods had fallen out of favor and cited to Loper Bright.
Then but still held that standalone businesses and websites were not places of public accommodation for purposes of the ADA.
Remains to be seen here and I will try to end my doom and gloom as we go forward.
REBECCA WILLIFORD: Thanks, Tom. So we're going to talk about one case in the vein of attorneys' fees. Many of us who are doing this litigation rely on being able to get attorneys' fees, under fee shifting, under the ADA and other laws.
We've seen a lot of sort of chipping away at this and have been fighting really hard.
Last month we saw a little more shipping away from the Supreme Court that Rachel is going to discuss.
RACHEL WEISBERG: So I'm going to talk about Lackey v. Stinnie. It's bizarre because the Supreme Court suggests they're not doing anything that's that different but I disagree. I will see if you do too.
In this case there was a challenge against a Virginia statute that had automatically suspended folks who had driver's licenses, if they had any sort of unpaid court fees and fines.
It was just an automatic suspension. So the plaintiffs filed the lawsuit challenging saying that that was a violation of due process and they successfully got a preliminary injunction. The end of getting the preliminary injunction, the wise folks in the Virginia general assembly decided let's just repeal the statute.
This seems like a bad idea. So I think pretty indisputably, because of the court decision, the general assembly repealed the statute.
Okay. So then what does that mean for the people who brought the case?
Are they prevailing parties sufficient to be awarded attorneys' fees? Well, the Supreme Court said no.
The Supreme Court said actually preliminary injunctions don't make a party prevailing because they don't conclusively decide the case on the merits.
That for a prevailing party to secure -- for a party to have prevailing status, they need to secure relief that is both judicially sanctioned and enduring.
The Supreme Court said look, this is nothing new. If you look at the history of our cases, this is kind of like a natural next step because they look at the Buchanan case that says to be a prevailing party someone needs to get relief that is judicially sanctioned. 2007 there was a case in the sole case the question was whether or not someone who wins a preliminary injunction and then does not win the ultimate case, whether they are the prevailing party.
I would suggest it is a very different situation if somebody wins the battle but loses the war or the situation where the one side wins the battle and the other side caves because they're going to lose the war but the Supreme Court says no this is a natural progression and therefore you need to have relief that is both enduring and judicially sanctioned.
I think in the disability space we're already saying that. You can imagine all sorts of cases where the preliminary injunction order really does subject constantly resolve the case. In their dissent, Justice Jackson who wrote it said this is not kind of the natural progression. And but unfortunately this was where we are.
I don't have any brilliant insights into what we do about this. This is something we need to talk about as a community to figure out how can we style our cases differently so we're not going in for relief that's just going to be called preliminary.
REBECCA WILLIFORD: Thank you, Rachel. So we're going to move into the second part of the presentation that we do have one more negative case we're going to talk about, but then we're getting into mostly wins. As we all know there's no sphere of life disability doesn't touch.
One thing I love, especially about our work at DRA, is that we are always trying to stay on top of the cutting edge of sort of what new form of discrimination is the world getting up to now that we can, you know use impact litigation to combat.
We couldn't possibly pick all the wins to talk about, but we're going to talk about some substantive case law developments and talk about housing and houselessness cases. We’re going to talk about effective communication cases, we're going to talk about some developments in the criminal legal system and how people with disabilities access that system. And what their experiences are. We're also going to look at some cases that are education, voting, transportation related.
My favorite, the final category, the smorgasbord where you're going to hear about everything, the 49er football stadium can they please get it right.
The service animals.
We're going to start with housing and houselessness cases in this vein, look at people who are living in RVs and facing bans on those vehicles and to also looking at sort of encampments and what happened. Of course we couldn't kick this section off without having one more doomsday from Tom talking to us about happened in the city of Grants Pass with the Supreme Court and we promise it's going to get happier.
THOMAS ZITO: Yeah.
REBECCA WILLIFORD: Take it away, Tom.
(Laughter)
THOMAS ZITO: So the city of Grants Pass v. Johnson, for -- this was an appeal by the city of Grants Pass challenging the 9th Circuit's decisions in that case and in an earlier case, Martin v. The City of Boise where the 9th Circuit had found under the 8th Amendment cruel and unusual punishment cause criminalizing the status of being unhoused when you had no place to go, no shelter to go to, no other place to be on the street constituted cruel and unusual punishment. So the Supreme Court in short said no, that's not the case. And found that criminalization of -- it's a little bit complicated, it found that under Robinson which was a previous case finding that status crimes could be violative of the cruel and unusual punishment clause, wasn't this case that people were homeless by some agency of their own.
That there was a voluntary aspect or choice in being home law symposium and it was not a violation of the cruel and unusual punishments clause.
I commend you to read the dissent in that case.
It's very eloquent and she pulls from many of the Amici who filed briefs including one from disabled veterans group that highlighted one of our clients in our Prado v. the City of Berkeley litigation, she pulls facts out very eloquently there. The impact of this decision has been that especially in the west, many cities are doubling down on draconian city ordinances criminalizing or further making civil penalties out of camping loitering, storing property, et cetera. And as that remains -- people are still fighting this issue and it remains to be seen what the end outcome is.
Why this is important to our community is that many people in the unhoused community are people with disabilities. People with disabilities are significantly overrepresented in the unhoused population.
Me estimates self reporting it more than 80% of the unhoused population are people with disabilities.
On a positive note, because I hope I reached my nadir here, is that DREDF has propounded a really great resource on how to litigate some of these cases and how to use the ADA positively in unhoused litigation, and I commend you to take a look at that. It's available on their website. Other folks in this space are we're putting our heads together and figuring out how to bring other challenges constitutional and disability rights challenges to essentially forcing people who are unhoused, you know, out of town.
That's the point of a lot of these ordinances is just kick people out of town, make the problem quote unquote go away.
It's not going to go away.
But I'll move on to the next slide, which is a little bit more positive and also in this space. So Bloom v. the city of San Diego is one of three or four vehicle habitation cases that DRA has been involved in.
Here we've got actually a great settlement and I want to shout out to all of our co- counsel here DRA, Disability Rights California, Fish and Richardson an incredible coalition of attorneys here who got a settlement, extracted a settlement out of the City of San Diego after seven years, eight years of litigation. There were two principal ordinances that involved vehicle habitation of one type or another.
The disability class, subclass was not certified.
The only class that was certified and defined and refined for settlement purposes was all persons in the City of San Diego who used, will use an RV or other vehicles as any form of shelter at any time after November 2017 which is when the lawsuit was brought.
Highlights of the settlement. There was ticket forgiveness for all unpaid tickets going back to November 15, 2017, through the effective date of settlement. There's a damages payout to the nine named plaintiffs and additional damages payout to the 7 class representatives.
There is expansion of the City of San Diego safe parking program that included a post of requirements to ensure greater and fair access to safe parking lots, make sure there's enough accessible parking for people, ensure there were basic services in these safe parking lots, like bathrooms, security, and electric hookup, and it required the city to commit 900,000 dollars over a period of time to make improvements to the safe parking lots, like adding additional water services, electric hookups and bathrooms.
Another facet of the settlement agreement, and several of the other vehicle cases I've been involving this has also been a facet, ensure that the city has a process to allow people with disabilities to request reasonable accommodations and have those requests considered in good faith and not denied unless they impose an undo administrative or financial burden. This seems very silly because this is the law.
However cities do not have these very simple processes and procedures and they do not train their cops to engage in this process with people.
On the street.
The last major piece of the settlement was a change to enforcement. When these safe parking lots are full, the city will not -- has agreed not to enforce these ordinances during the overnight period from 9:00 p.m. to 6:00 a.m. So that will allow people to actually sleep on the street and not have their homes towed away. So the next housing case, changing gears completely, this is a much happier case, and this is the Access Living v. The City of Chicago case brought by Access Living and Relman Colfax. The issue is whether the city was liable to failing to ensure that its affordable housing program which is financed by federal and state funds was actually accessible. The city made typical arguments said we're not responsible for third parties failing to make the housing accessible.
The district court judge, in a very well thought out decision said no.
Any reasonable jury could find that the affordable housing scheme was an activity within the meaning of Title II and Section 504 and that the program had to comply with the design and construction requirements of the FHA.
Also had to comply with federal accessibility laws. This is the first case of its kind to go to summary judgment, and that's why it's really important. They got a great decision, and this should be a model for further litigation in the future, even though this litigation can be expensive and time consuming.
We'll see what happens.
I understand the case is not yet set for trial, but we'll see. And talk to Michael Allen if you want to know more about it.
The last case I want to talk about, this is not -- I guess I wasn't done with my doom and gloom.
(Laughter)
Ohio House v. Costa Mesa. This, Costa Mesa has a particular zoning ordinance that does not allow group homes to be closer than 650 feet. So in other words every group home has to be 650 feet apart from each other, which seems like plenty of space, but in reality prevents a lot of group homes from operating within the city of Costa Mesa.
It's akin to some of these other criminal ordinances where you can't do anything within a thousand feet of a school.
If you look at a map every house in Costa Mesa is 650 apart from the other one. So Ohio House is operating a sober living environment for men. Realized it was out of compliance, the permit was denied, asked for an accommodation and that was denied.
They went to a jury trial. The jury got a verdict against Ohio house and the ninth circuit affirmed that the holding was somehow fundamental to the city's zoning scheme and granting an exception would have been fundamental alteration.
There's been some great amicus activity here.
One thing that was very disappointing about the 9th Circuit's decision here is that I believe that part of the evidence at the district court was that there had -- that Costa Mesa had systematically denied over 20 applications for reasonable accommodations the zoning law. And prior 9th Circuit precedent had said stated that it was providing accommodations on this basis for sober living or other group homes was absolutely a reasonable accommodation. So again, stay tuned.
REBECCA WILLIFORD: Thanks, Tom. So we're going to move into some effective communication cases at this point.
I know there was a great discussion at Deaf Law Day about some of these cases.
Thanks to those who participated in that but we're going to look at some big wins and for the Blind and Deaf community especially when it comes to this topic, everything from prisons to amusement parks, there's some really great developments that happened over the last year.
Rachel is going to kick us off by talking about Martinez v. county of Alameda where DRA's head quarters is located in Berkeley, California.
RACHEL WEISBERG: And I had the great pleasure of hearing about two of the cases hearing from the lawyers who actually litigated the cases so I will do my best to give the cases justice. I wanted to start with a shout out to Tim Elder and Christopher Nelson and Sarah stoner who worked on the case that was talked about yesterday as well. This is a case that was brought by a blind business owner who went to the county's clerk recorder's office to start a business.
She wanted to file a fictitious business name statement to start her new business.
She wasn't able -- she had to get this complicated form filled out. She went to the recorder's office. And lo and behold there was a mistake on the form.
I, as we understand, there are oftentimes mistakes on forms and the clerk will just tell the person what the mistake is, they go to the side, they correct it and then lo and behold they can file their form and start their business.
Unfortunately for Ms. Martinez the form was in print so she needed some sighted assistance. For folks who were in the that Tim gave yesterday, we heard on the audiotape just the ongoing communication between Ms. Martinez and the recorder's office.
It was so compelling and you can see why they were so successful in this case. Because all she needed was a little bit of help with the transcribing to be able to fill out this form and just the recorder's office would not budge that it was against the law for them, even though she couldn't cite why it was against the law to help fill out this form. So Ms. Martinez ended up going home, paying someone to help, going back to the office, paying someone to come back with her, and ultimately she was able to finally file the form and start her business.
But this case is one of those where litigation was necessary to get a good result.
So the update this year is that they had filed this complaint in March and April of 2024 there was a six day jury trial where there was a verdict for the plaintiff awarding -- finding that the county had discriminated against, with deliberative indifference and had awarded the plaintiff over 30,000 dollars in damages. The most recent update in 2025 the court ultimately granted a permanent injunction requiring the county to provide auxiliary aids for blind folks specifically transcriber services.
There's an argument do they just need to provide it for the fictitious form and the court said no you need to provide it for all of the forms that are similar.
One of these situations where you hear sometimes the best results because the other side is so unreasonable, but really fabulous advocacy and congratulations to everyone involved.
(Applause) I love when people clap.
Okay. Fowler v. California department of insurance. This is continuing with the Tim Elder shout outs and this one was a case that was brought with DRA as well.
This was a case where we represented NFB and three blind individuals against the California Department of Insurance and their licensing examination vendor PSI Services who do a lot of the high stakes testing exams across the country.
So the test takers here were folks who were unable to take the California insurance license exam because it was not accessible to people who are blind who use screen reader software. This case was filed in state court in California, and it resulted in a settlement in August of last year where PSI agreed to make sure its online testing technology was independently accessible to people who are blind and have low vision. And specifically referenced the 508 standards for compliance.
Then the settlement goes on to make sure that there's more general equity in terms of the test taking as well. They said test takers who need auxiliaries and services and who have access to this are going to have the same scheduling options as any other users.
They're going to develop an online testing technology to make sure that the test remains accessible over time, and make sure that the folks who are actually proctoring the test get sufficient training.
Also really importantly we see a lot of these high stakes testing cases folks have to provide documentation after documentation to prove what sort of accommodations they need. As a result of this settlement agreement, for folks who are blind test takers they'll be able to self certify their need without any additional medical documentation. There's also some monetary relief for the plaintiffs.
Really a great result that hopefully can be replicated if need be.
Patterson v. Six Flags Theme Parks. I know there was a nice presentation about the fabulous work that happened in this case. So congrats.
This is a case there was a Deaf man who was an amusement park enthusiast.
He had purchased for his family tickets to six flags but typically he would ask for an interpreter or other sort of accommodations to make sure he could enjoy things like all of the different shows, make sure he understands the safety messages and other sorts of park notifications.
If you read this case, you can feel the frustration. This individual did all the right things.
Called Six Flags a million times, emailed, sent text messages, talked to everyone in every sort of customer service area you can think of and consistently got the runaround and you could tell Six Flags had no training. He got information about disability policies that had nothing to do with interpreters, was totally irrelevant.
This was another one that went to a bench trial and there the court find Six Flags had denied accommodations nine different times, and specifically faulted the poor training and policy implementations for the systemic failures. It was really fascinating decision to read, because you can see the court -- like the court was like totally on the plaintiff's side.
There was no ambiguity here, really just faulting Six Flags for how poorly they handled the situation. Six Flags made this argument that I think we see a lot, they said we had this policy that you have to ask for an interpreter seven days in advance and he didn't comply with the policy. Which, as a factual matter was not true in like many of the circumstances but the court went on to say corporate policies are not the law, which I just appreciated very much.
So as a result, there were actual damages in about 18,000 dollars statutory damages under Unruh, 36,000 dollars and just recently March of 2025 the court entered an order and a permanent injunction and it is an extremely detailed permanent injunction with everything from what information needs to be on the website, how to process ASL requests, what sort of staff authorization and training and quality assurance and the attorneys' fees application is pending.
I've never seen anything this comprehensive and robust in the amusement park setting so I was excited to share it with you and congrats to the folks involved.
(Applause)
Love the clap.
Then Trivett, which we got to talk about a bit at Deaf Law Day this was another great collaboration between disability rights organizations. Amy Robertson's firm disabilities rights Tennessee, disability united and DRA. And this is a really important case that was brought against the Tennessee Department of Corrections.
There's been a lot of cases out there about Deaf folks who are incarcerated.
I worked on one in my past life, they're really important cases because when folks in Deaf who are in prison can't communicate it is essentially being like solitary confinement. So this was a case brought by several Deaf incarcerated folks and disability rights Tennessee. The P&A was both associate plaintiff and co- counsel on the case. Here plaintiffs were able to identify hundreds of high stakes interactions which has come to be known as really important communications where people did not have ASL interpreters.
Amy shared at Deaf Law Day they were able to make this amazing spreadsheet showing autopsy of the different times there were almost 270 instances where people had important doctor appointments, due process hearings, things that are very, very important and were able to get admitted that there were no interpreters. So the plaintiffs were successful -- a lot of updates on this one, because in July of 2024 there was a really great decision on granting the plaintiffs partial motion for summary judgment, finding that the Department of Corrections had failed to provide ASL interpreters on all these different occasions and had failed to provide video phones.
The case is so interesting.
In addition to finding that disability rights Tennessee did not need to exhaust through the grievance process, which for folks who do corrections work is a very, very challenging if not insurmountable barrier to bring in these cases as required by the PLA, there's some really great language saying people who were Deaf and did not get interpreters for the intake did not have the grievance process available to them. Because they did not understand what was supposed to happen and then this process had to be communicated in English. People were not English speakers.
There was a question of whether they sufficiently exhausted their grievance process even though they didn't on paper.
That was a really important decision.
After that decision there was a lot of work. I know that folks, everyone was working over the holidays.
The case was supposed to be tried I think on January 7th and maybe two days before, on the Eve of trial, the case settled.
It's a really great settlement agreement. The Department of Corrections is going to be providing interpreters for these high stakes interactions, and it is going to be providing video phones, comprehensive screenings and assessments to make sure people get the communication technology that they need.
Another great results and congrats to folks.
(Applause)
REBECCA WILLIFORD: Thank you Rachel and it's great to celebrate so many of these wins when we have them. So we're going to go back over to Tom to talk about some developments in the criminal legal system in those cases that happened over the last year. So we will kick things off with looking at mental health and emergency medical response cases.
THOMAS ZITO: Again, these are hopeful cases. I just wanted to highlight for mental health and emergency response, there appears to be a little bit of a trend here that maybe finding that the ADA requires accommodations to procedures and also policing or in this case response to mental health. So the first case is Disability Rights Oregon v. Washington County.
There the plaintiff challenged the county's failure to send trained mental health professionals in response to a mental health emergency, as opposed to just sending EMTs or cops.
The magistrate judge in that decision, who is very experienced in police litigation and also prison litigation, I've done several cases with her. She issued an R & R saying plaintiffs have plausibly alleged that people suffering from a mental health crisis do not have meaningful access to service that is consistent access to emergency communications system.
That case was brought by a DRO and ACLU local chapter. Objections were filed by Washington County, which just for geographic purposes, Washington County is just to the west of Portland and includes part of the Portland metro area. It's a little bit odd because it's appealed to the Article 3, but no Article 3 just has been assigned in the case and objections have been pending since October 2024 so we'll see what happens in that case.
The other case is Bread for the City v. District of Columbia.
This was brought by ACLU and Sheppard Mullin. It was also a complaint that DC violated the ADA by sending police as a default first responders in mental health emergencies. The Biden DOJ filed a statement of interest remains to be seen if that remains but the motion to dismiss was denied in September so we'll see what happens there.
Again, these are positive. This is moving forward.
RACHEL WEISBERG: I think Tom wants people to cheer for him.
(Laughter)
THOMAS ZITO: Everyone claps for Rachel. Next two cases are more kind of about corrections kind of build can on what Rachel was talking about in Trivett. The United States v. Wisconsin Department of Corrections.
This is a DOJ settlement involving incarcerated individuals with Deaf and hard of hearing disabilities requiring to provide auxiliary services including providing cochlear implants and VRI.
The next case is Terrill v. state of Oregon. This was a punitive class of incarcerated individuals, challenging the Oregon Department of Corrections really terrible administrative rules and policies requiring all incarcerated people with disabilities to pay for their own durable medical equipment. That changed from everything from hearing aids, vibrating watches, to prosthetic limbs, wheelchairs, power chairs.
Repairs to those devices, et cetera.
So our initial named client, Donald Terrill, had a below the knee amputation from a car accident prior to being incarcerated but he did not receive the insurance money.
He was required to pay for his own prosthetic device which was about 24,000 dollars in 2013 when he was incarcerated. He was paying that back -- as many of you may know, people who are incarcerated do not really earn very much money at their quote unquote prison jobs. Mr. Terrill was making about 50 dollars a month. Half of that money was taken initially by the Department of Corrections to pay for that debt.
Then of that 25 dollars remaining that he had for the month to spend on items in the canteen, like boxer shorts or deodorant, any money he had at the end of the month would be swept out to pay for that debt. So he could never actually save for anything. And when he needed a new device, that debt or repairs to his existing device, after he tried to get it approved, he would have to continue to pay for that, or put that into -- go into further debt. Our other two clients, Mr.
Pando was hard of hearing and required more specialized hearing aids than just the 50 dollars amplifiers that the prison would sell in the commissary so he also went into debt for those hearing aids. And our third client was shot 11 times by sheriffs on his arrest and he was rendered paraplegic by the shooting and had mobility difficulty with his upper body and shoulder from bullet fragments.
He used a motorized wheelchair that was paid for by Oregon health authority when he was in county jail but when he moved over to DOC corrections for the remainder of his sentence, he was required to pay for those devices. Our settlement was not a class settlement, but it did retract that rule and now the DOC will pay for those devices for people.
We did get restitution for all incarcerated people who are still in custody.
Their debts were wiped clean and the money that they had paid was restored to them and it also included damages and attorneys' fees. So it was a pretty good settlement and got very good significant changes including eyeglasses.
They will now pay for eyeglasses for incarcerated folks.
We kind of threw that one in as a Hail Mary. So small victories.
(Applause)
RACHEL WEISBERG: Great job, Tom.
THOMAS ZITO: Thank you for making me feel validated. The last two cases I'll go through quickly, opioid use disorder and the ADA. This is recognition that treatment that substance use disorders being recognized, at least in carceral settings.
The first case United States v. mason County western district of Washington.
The DOJ had alleged that Mason county jail was failing to provide medication and got a settlement requiring them to do that and getting them medical treatment.
Similarly the United States v. the unified judicial system of Pennsylvania, again alleged that the Pennsylvania courts were violating the ADA by preventing people under court supervision from taking prescribed medication to treat opioid use disorder and there was a settlement agreement there. As of now, or as of March 6, 2025, the DOJ fact sheet on opioid use disorder was still active.
Again, that will remain to be seen.
REBECCA WILLIFORD: All right. Coming into our last 20 minutes we're entering lightning round mode; we're going to talk about some education cases. I'm going to hand it to Rachel.
There was some really great developments, everything from elementary school to higher ed to even a Board of Education case.
Lots of great injunctions this year. Lots of great attorneys doing great work. Take it away, Rachel.
RACHEL WEISBERG: And we are, again, entering lightning mode so I'm not going to have time to give all of these cases as much love as I would like to. They're all amazing. I'm just going to say this is the education injunction section, so many injunctions have been ordered which is pretty exciting.
Starting with the Guerra case, this is another great coalition, DRA, disability rights California, this is a case also that I think folks have been following for years and years.
It was a case where there is this college on a very hilly terrain and there used to be a shuttle system that enabled folks who had mobility disabilities to be able to get to and from their classes and other sorts of activities.
The college took away that system.
So people really were unable to get to class and do other things without a lot of difficulty, if not being impossible.
Ultimately the case was dismissed because the court had said well, there's no obligation for universities to provide transportation. Went up to the 9th Circuit they reversed and they said actually no, you need to make sure you're providing meaningful access to your students.
It was remanded. There was many, many years in between, but just last summer there was a district court order granting an injunction saying that the college needed to provide transportation services in some form to the students with mobility disabilities in either an on demand system or a point to point shuttle system.
They needed to figure that out when the students start school.
They did. The court said you have lost, this decision we're letting you know, which is pretty cool especially it was since the district court had been overturned, they came around.
More recently there is a pretty substantially monetary settlement damages of 360,000 dollars split among plaintiffs, and the attorneys' fees negotiations are pending. I think a really important case in the higher ed space. There's a theme in some of these additional cases of like even though the regs don't specifically state it, or if you're complying with the letter of the regs, you might need to do more and we're going to see that in a few of these different cases.
Moving on to the CB case this is versus Moreno Valley this is another just really, really important K-12 case it was brought by DREDF, DRC and several other private firms and this was a case on behalf of a 10-year-old Black student who had all sorts of horrific incidents at school, was tackled, handcuffed, taken into custody and the case was brought challenging this for him, but also saying we need to figure out how to students, especially Black disabled students are not being disproportionately faced with punitive challenges when they have behaviors at school.
There was a permanent injunction granted in this case in June of 2024 with all sorts of changes to how the school is going to address referral to law enforcement for students, including having a court overseer, and a monitor who is going to develop an action plan with goals and policies and training and all sorts of really, really important relief I think is going to be really meaningful.
There's still an application for attorneys' fees pending.
So really important one there.
Then final injunction of the education section is the Hernandez v. Enfield Board of Education case which we got to hear about yesterday. This is a case where there was a lawsuit brought by someone who served on the Board of Ed who was autistic and Deaf and had needed some pretty basic accommodations like permission to pass notes and permission for people to look at her when she was speaking so she could read lips.
It's another one that baffles you like how did this have to go to a jury trial but it went to a jury trial and the jury agreed this is ridiculous and found for the town.
In June of 2024 the court ordered a permanent injunction, all sorts of policies in place and as I learned yesterday, they just had an award of attorneys' fee of 1 million dollars. So hopefully the board learned a lesson there and won't be doing this in the future.
REBECCA WILLIFORD: Thanks, Rachel. We're going to spend a moment talking about voting cases. As we all know voter suppression laws are taking on more and more forms that are keeping people with disabilities from being able to vote or being able to vote privately.
We're seeing that many courts are really, really nervous about the security issues and I think the folks in this room and part of our community are starting to and are really going to need to grapple with what is the resolution, how do we reconcile security concerns and accessibility and how do we all get comfortable with that so we can be sure that disabled people aren't being disenfranchised.
Part of the fun of doing this presentation is you got to be watching PACER all day, all night.
So you probably late breaking decision.
A raft of counsel including our friends at Disability Rights Texas, The Arc, ACLU and many others, took Governor Abbott to the mattresses and said you've got this horrible law in Texas that's criminalizing voting assistance and this is a very complex case.
The upshot last night is we're celebrating the victory the order found that SB1 violates the ADA and Section 504 because it imposes significant barriers to disabled voters. And sort of criminalizes those who needed assistance with their mail in ballots.
There's really great language in the decision on page 112.
Hopefully you all were reading that late last like me.
Where the court reiterates that the vote must be meaningful, accessible and free from unnecessary hardship.
(Applause)
REBECCA WILLIFORD: Yes. Quickly two quick cases in Ohio and Alabama. We included these because the DOJ filed really helpful statements of interest.
Who knows what that means, but there were these were laws that restricted in Ohio criminalized another person from returning another person's ballot.
Title II requires public entities to provide voter absentee assistant and allows them to use the assister of their choice and confirmed the voting right act permitted disabled voters who needed assistance to get it from anyone they choose.
That was helpful. The court in the end actually didn't evaluate the ADA claims in Ohio, but it was helpful language from the DOJ for whatever that is worth in this world.
Then on to California Council of the Blind v. Weber. Thank you so much to our co- counsel Brown, Goldstein & Levy, Eve hill, Disability Rights California, Rosie from DRA is sitting in the front row if you have questions, see her.
But this was our case in California that took some twists and turns. So there was sort of this gap in the vote by mail process where ballot return was not accessible to people with different print disabilities and manual dexterity disabilities.
So we sought and lost a preliminary injunction, but you know picked ourselves up, dusted ourselves off, and amended the complaint and actually beat a motion to dismiss.
We are set for trial in 2026.
Stay tuned.
Lots more details.
Again we've entered lightning round mode.
Now we're going to move on to -- and again, disability work could not be more critical in this world right now, so we're always happy to talk about it. Rachel is going to talk about two of my favorite cases, even though we really shouldn't have favorite cases.
In the transportation world, Baltimore sidewalks. Let's hear it for making those accessible and New York City taxies.
RACHEL WEISBERG: We've got the taxis case. In 2013 DRA had reached a settlement with New York City's Taxi Commission to make sure 50% of taxis were wheelchair accessible by the end of 2020. They did not do that, we gave them an extension, they did not meet it. We filed a motion to enforce, they asked for a motion to get rid of the settlement agreement based on impossibility, they lost.
End of story.
There's a really great decision saying no, actually this is possible.
You need to just every single cab that you are now commissioning needs to be made accessible until that 50% requirement is met. Make sure courts retain jurisdiction of your cases so that 12 years later you can go back to court and get a good enforcement order.
Then the Goodlaxson v. Baltimore is a case with lots of wonderful co- counsel and this is a case where there is a pending partial consent decree for Baltimore to do a lot to fix their curb ramps and sidewalks and there's a fairness hearing in Baltimore next week, so folks who are sticking around should go and check it out. Cheer on everyone's who's going to be arguing that one.
REBECCA WILLIFORD: Now we're doing the smorgasbord category. Tom?
THOMAS ZITO: Next it's Guthrey v. Alta California. Amy Robertson and DREDF, the takeaway here is that under Title III brick and mortar requires some type of facility to have a Title III but 504 does not. I think that's the quick takeaway.
I'll let you read the slide.
For lightning round. Noun, Brown v. District of Columbia. This was another fantastic decision.
AARP foundation disability rights DC got a permanent injunction requiring DC to comply with Olmstead.
Again, said that their transition services had to remain and enter a permanent injunction requiring DC to make sure that happens.
RACHEL WEISBERG: Maya v. 49ers football. A wheelchair user got a last minute tickets to go to the football game and it was not for accessible seating because it was a last minute ticket and he got there and there was an available seat in the wheelchair section but his ticket was not for that seat.
Therefore he could not sit there.
In he sued and in defense the 49ers argued we are complying with the regulations ticketing process we have all of the things; he could go online and get the accessible seat and the court said you still have the ADA general nondiscrimination reasonable modification principles so that's not going to be enough.
I just checked this case so the court denied the motion to dismiss and about just last week the case settled. So great job. Really good one.
CL v. Del Amo which is another longstanding case we've seen go up and down and up and down.
This is a case of course where there is an individual with mental health disabilities that was going to an in patient hospitalization and the hospital said you can't have your service animal with you, it's a fundamental alteration. First they said your service animal was not certified and the 9th Circuit said that's not a thing under the ADA, went back down, then the hospital said it's a fundamental alteration we're teaching you how to be independent and she's like I need the service animal.
That went up to the 9th Circuit went down on mootness. Recently there was an injunction saying hey when this person comes to this hospital for treatment, you better let her in with her service animal. Lots of ups and downs there really exciting development and shout out to everyone.
I know Alexandra is here, civil rights, Bazelon, lots of wonderful attorneys.
REBECCA WILLIFORD: So we're going to talk about cases to watch and this is really the jumping off point for the discussion and the world forward together that we're navigating. So I want to highlight three cases that are going up to the Supreme Court. Stanley v. City of Sanford, Florida.
Here the court is going to look at whether a former employee under the ADA retains their right to sue under the ADA with respect to post employment benefits.
Even though they're no longer an employee can they sue.
We have AGJ v. Osseo Area Schools. The issue is whether the ADA and Rehab Act can require children with disabilities to satisfy a really stringent standard of bad faith or gross misjudgment when they're trying to get relief under the ADA or rehab act for their education issues.
Then of particular interest to those of us that are class action practitioners, a big one Davis v. LabCorp is set for argument April 29th. The issue there is whether a federal court may certify a class action pursuant to rule 23b3 when some of the members of the proposed class lack Article 3 injury. So this is a big one, and could have really detrimental effects if it doesn't go well.
That's stay tuned on that one.
Also three decisions that are anticipated. Payan, and Texas v. Becerra and Vargas v. quest diagnostics, a class. The court granted the permanent injunction requiring quest to adopt changes but didn't order modifications of kiosk to include all the requested accessibility features.
Then we are at the end, so we're just thinking about strategies, developments, opportunities. I think as we enter this world, there's anticipated and unanticipated things.
Rt of Loper Bright we anticipated some of these other things that are coming at us rapid fire.
We're probably not as anticipated, but we're working together as we navigate the road ahead, as we look at Loper Bright, as we start to consider is arbitration a good path for some of these claims and also keeping in mind state and local developments don't forget about our very creative friends in Illinois who did very wonderful MacGyver y things with state law.
So we have 30 seconds for questions and discussion.
RACHEL WEISBERG: I want to give a shout out to Cat Caballo who is doing amazing work.
(Applause) -- So we're happy to continue the dialogue. I think the witching hour has come.