Auer deference – the subject of the Supreme Court’s recent decision in Kisor v. Wilkie – has played a role in some important ADA cases, especially those concerning the line-of-sight issue for movie theaters and stadiums that Justice Kagan mentioned in her opinion. Despite this, Kisor is unlikely to have much effect on Title III jurisprudence both because of the limits on the decision, which confirmed Auer deference with a little explication, and because of the limits on Auer deference itself. Auer deference could be outcome determinative in ADA cases, but at the end of the day it is the court, not the legal principle, that matters. More
Hunt quoted in Law 360 article on ADA issues for sports arenas
I do like to toot my own horn from time to time. I was among several ADA experts quoted in an article by Zachery Zagger on stadium line-of-sight problems under the ADA that was published by Law 360 on July 3, 2019. These cases figure prominently in the Auer deference issues for Title III of the ADA that I hope to blog on soon. See, MLB Parks Face Costly Fixes As ADA Suits Target Sightlines.
Auer deference and the Fair Housing Act – does Kisor change anything?
Just last week the Supreme Court took a long hard look at something called “Auer deference” and decided that it would remain the law, but with some strings attached. Kisor v Wilke, No. 18-15 (June 26, 2019). I’ve never once had the occasion to mention Auer deference in this blog or in any brief I’ve filed in disability lawsuits, but the decision could have an impact on future disability rights litigation. In this blog I’ll consider the possible impact on litigation under the Fair Housing Act. In the next I’ll look at what turns out to be the more complex possible effects on litigation under Titles II and III of the ADA. Before I explain why, I should refer anyone interested in a detailed analysis of the decision to William Goren’s blog on the subject here.* More
Quick Hits – Serial filer edition
This is a bad pun. Sorry.
All but two of today’s cases are from serial filers, and 7 of 17 are from a single serial filer, Scott Johnson. The fact that serial filers dominate the world of ADA litigation is hardly news; in fact, it would news if an ordinary disabled individual who suffered a real ADA injury filed suit. It is also news that federal judges in the mid-west are showing an increased reluctance to keep cases alive based on dubious standing claims. As Bradley Cooper sings in the latest version of A Star if Born, “Maybe it’s time to let the old ways die.” More
“An atmosphere as quiet as an undiscovered tomb” – is that what the ADA requires?
In My Fair Lady Henry Higgins famously described his ideal room as having an atmosphere as quiet as an undiscovered tomb. Some anti-noise advocates would like to have the ADA impose this kind of requirement on every public accommodation. A recent news story* about this illustrates how little the press and public understand about what the ADA requires.
The complaint that prompted the story is simple. If you have a hearing impairment then it is hard to understand conversation in a noisy public place like a restaurant.‡ In discussing this complaint the Washington Post article and the underlying paper by Daniel Fink ignore or misunderstand two things about the ADA – what it means to be disabled, what the ADA requires in the name of equality. More