ADA and FHA Defense

    • Acheson Hotels – I had to say something

      TV test patternMy Google News feed has had dozens, maybe hundreds of articles about the Supreme Court’s decision to dismiss the Laufer v Acheson Hotels case. When written by disability rights advocates the positions are what you’d expect; either “whew we dodged a bullet” or “Laufer has standing and the Court saved itself from a horrible mistake.” Business oriented writers, knowing that if the Court had addressed the issue it would almost certainly have confirmed that Laufer did not have standing, wish the Court had ruled instead of dismissing based on mootness. I found a good analysis of the issues in Dorf on Law but I still haven’t seen what I think is the argument that can save tester standing for the circumstances in which it makes sense without allowing exploitation with the goal of making money.

      We have to start with Haven’s Realty v Coleman. This opinion dates from an era in which it was more or less assumed that if Congress created a statutory injury and you suffered that injury you had standing under Article III of the Constitution. That’s why, when asking whether a tester who had no intent to rent an apartment could still sue under the Fair Housing Act the Court was content to observe that the plaintiff suffered exactly the injury Section 3604(d) was intended to protect against. It never asked whether the injury Section 3604(d) was intended to protect against would always satisfy Article III because that was assumed. Based on Haven’s Realty v Coleman, “tester standing” has no constitutional component. It means no more and no less than the tester suffered exactly the injury the statute was intended to prevent.

      The old “statutory injury is good enough for the Constitution” notion ended with TransUnion. Whether the statutory injury satisfies Article III is a separate inquiry from whether the plaintiff suffered a statutory injury because Congress’ ability to create causes of action is limited by the Constitution. If Havens Realty v Coleman went before the Court today it would start with the question of a statutory injury, but then ask whether that injury satisfied Article III of the Constitution.

      So what about the Laufer cases? There’s a good argument she suffered the statutory injury. DOJ regulations require information on hotel websites. She looked for the information and it wasn’t there. She suffered the very injury – not having information – that the ADA and regulations were intended to prevent. The question then is whether that injury satisfies Article III of the Constitution. Some Circuits say no because she didn’t need the information. Some say yes because even if she didn’t need the information her dignity was affronted when she learned that the hotel had not complied with DOJ’s regulation. When the issue is squarely presented to the Supreme Court I think it will find there is no standing because the so called “dignitary harm” isn’t enough.

      This does not mean, however, that Havens Realty v Coleman is dead. One of the peculiarities of the ADA’s definition of discrimination is that discrimination includes treating everyone exactly the same in ways that only harm those with disabilities. It doesn’t matter that a building or website is the same for everyone and it doesn’t matter whether the design was bad because of a discriminatory intent or because of ignorance.  Because of this peculiar definition of discrimination equal treatment is against the law when it comes to building and website design.  It is this kind of “no fault” discrimination that makes serial litigation like Laufer’s possible. Just by looking at a defective building or website a plaintiff like Laufer can claim to be a victim of discrimination and that makes filing hundreds or thousands of lawsuits easy.

      This makes plaintiffs like Laufer different in a critical way from the Black plaintiff in Havens Realty. The plaintiff in Havens Realty did not just get false information; he got false information while his White fellow tester was being given true information. That difference in treatment because of race was necessary for a statutory violation to exist. False information alone is not actionable under Section 3604(d). The section is violated by giving false information because of race.  Plaintiffs like Laufer, on the other hand, do fail to get information or see a physical construction defect because they are disabled; they see what everyone sees; it just (arguably) affects them differently.

      Although those in the disability rights community probably won’t admit it, there is a qualitative difference between the offense one feels because of being treated differently and the offense one feels by being treated the same when that same treatment has a different effect. In terms of having one’s personal dignity affronted there is a difference between differential treatment with a discriminatory intent and equal treatment with a differential effect that may not involve any intent to discriminate at all.

      This, I think, is the distinction that can and should preserve tester standing. Treating a tester differently because of their race, disability, religion or other protected status creates the kind of dignitary harm that may satisfy Article III even if there is no other harm. Treating a tester exactly the same way everyone else is treated does not create that kind of dignitary harm. A rule like this would permit  testing in the ways that it has been traditionally used to root out intentional discrimination but would eliminate the kind of industrial litigation engaged in by Laufer and similar testers under the ADA.


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    • FHA indemnity and contribution – another step in the right direction

      On October 13, 2023, Magistrate Judge Peter Bray of the Southern District of Texas released a Memorandum and Order that analyzes the reasons for permitting an owner of multi-family properties to bring in every party that contributed to an FHA design/build violation. It is the right decision for the right reason, but also provides an opportunity to look again at the irrationality of earlier cases and the indemnity/contribution distinction.¹

      The story is a familiar one. A serial plaintiff, Dana Bowman, sued the owner of an apartment complex and one of its principals for failing to design and construct the apartments in compliance with the design standards in 42 U.S.C. §3604(f)(3)(C). The owner of an apartment complex is liable for such failures, but almost never responsible for them. In most cases either the plans were wrong – in which case the architect or engineer made a mistake – or the contractor didn’t follow the plans – in which case the contractor made a mistake. It is usually a combination of the two.

      The owner sought to shift liability to the four entities that provided architectural and engineering services by filing a third-party complaint against them. After some procedural matters were tidied up these third-party defendants sought to have the case against them dismissed because, they argued, federal law preempts any effort to shift liability away from the owner to others through a state law claim for professional negligence. The argument is that if any liable party can shift its liability so some other party it won’t have any incentive to obey the laws. See, Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602 (4th Cir. 2010). It is an idiotic argument for reasons that I’ve explained in previous blogs.

      Magistrate Judge Bray correctly noted that Equal Rights Ctr. only discussed claims for indemnity; that is, claims where the owner sought to shift 100% of the liability to a third party. Passing over various post Equal Rights Center cases at the district court level he turned to City of Los Angeles v. AECOM Servs., Inc., 854 F.3d 1149 (9th Cir. 2017) a case that discussed contribution. A contribution claim seeks to shift to a third party only as much of the liability as they are responsible for. In AECOM the Ninth Circuit found that shifting the appropriate liability to responsible parties was not preempted by federal law, and in fact served the purpose of federal law by giving every party involved in the design and construction of a building or other facility an incentive to follow the law.

      Magistrate Judge Bray found that contribution claims against the third party defendants were permitted because, after all, they would only be responsible for FHA violations found in the plans for which they were responsible. The possible role of the contractor in not following plans was not discussed because the owner didn’t seek to make the contractor a party.

      The opinion isn’t lengthy and reaches the correct result because the Court did not have to address the problematic distinction between indemnity and contribution in this context. Suppose the architect delivers defective plans and the contractor follows them perfectly. If the architect is liable for its share of responsibility it will have to bear 100% of the loss – there is no one else to blame. From the owner’s perspective the same result is reached if the architect and contractor between them share 100% of the blame. Two claims for contribution amount to one claim for indemnity because if the architect and contractor each bear their fair share of the loss the owner ends up with no responsibility. Depending on the state law of contribution the owner may be out attorneys fees and litigation costs, but won’t pay anything to fix the property.

      A distinction between contribution and indemnity based on the percentage of the liability that is shifted from the owner to third parties doesn’t really make sense. There may be public policy reasons not to allow an owner to require the architect or owner to contractually indemnify the owner for more than their share of responsibility but even this is doubtful. When a contractual indemnity shifts liability away from a party who may have no assets (like a single asset entity that has sold the property and distributed the profits) to a party that has assets or insurance, then shifting liability gets the job done by providing money to fix the property. It seems unlikely the Fair Housing Act’s design and construction provisions were intended by Congress as a means of shaming the parties involved in the design and construction of multi-family properties. The goal, I think, was to create accessible housing, and that goal requires looking for money, not punishing parties who happen to have statutory liability for the mistakes of others.²

      Rant: assigning moral blame to discrimination defendants dates to the days of race and religious discrimination when an evil intent to discriminate was an element of the claim and the intent to discriminate was clearly evil. Design/build discrimination imposes no fault liability for which having an evil intent is irrelevant. Despite this plaintiffs hysterically treat everyone involved in the design and construction of multi-family housing as having evil intent, comparing even accidental errors in design or construction to the practice of putting out “whites only” signs from the era of legal segregation. Plaintiffs should focus on getting the job done instead of arguments about morality that ultimately result in letting the most responsible parties escape liability.

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      ¹ See, Indemnity and Contribution under the Fair Housing Act and the earlier blogs with links within it.

      ² It is worth noting that even claims for indemnity do not relieve the owner of liability unless the indemnifying party has the money to fix the problem. Contribution and indemnity only improve the likelihood that someone with money or insurance will pay to fix the problem; they do not relieve the owner of its ultimate liability if no one else can pay.


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    • Acheson Hotels – tester standing at the crossroad 2.

      In my last blog I looked at why testers became embedded in the enforcement of civil rights laws from a practical standpoint. Now it’s time to look at the law of standing as it relates to testers.¹

      The Supreme Court recognized long ago that Article III of the Constitution only gives federal courts the right to decide “cases” or “controversies.” Those words are in the text of Article III itself. By the 1960’s this requirement was interpreted to mean that the plaintiff had:

      such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.

      Warth v. Seldin, 422 U.S. 490, 498–99 (1975) [citing earlier cases]. To have such personal stake required that the plaintiff have suffered or be threatened with an actual injury. The plaintiff could not merely “rest his claim to relief on the legal rights or interests of third parties.” Id. A plaintiff who met the requirements of Article III had “standing” to sue in federal court.

      Hand in hand with the development of the idea of Article III standing came the idea of “prudential” limits on standing. Simply put, “prudential” meant that sometimes the federal courts would not hear a case where there was a real injury because enforcement of the law or constitutional provision in question was better left to federal agencies. Of course, it was a different matter when Congress itself gave someone the right to sue. If Congress gave an individual the right to sue then it was hard to say that prudence meant the courts should not hear the case.

      That brings us to Havens Realty v. Coleman, the case often cited for the proposition that “testers have standing.” It was a classic tester case – a white tester and a black tester asked about the availability of an apartment. The white tester was told it was available. The black tester was told it was not. A crystal-clear case of racial discrimination in violation of the Fair Housing Act. However, neither tester really wanted to rent an apartment. The defendant claimed that without any desire to rent the black tester suffered no harm from being lied to and therefore lacked standing to sue. The Supreme Court disagreed. It pointed out that the FHA has a specific provision (Section 3604(d)) making it unlawful to give false information to someone based on their race. Because the black tester suffered exactly the injury the FHA was intended to prevent he had standing.

      The key thing to notice here is that the Supreme Court said, in essence, if Congress gave someone the right to sue then their statutorily defined “injury” would enough to satisfy the Constitution. Congress could decide who met the requirements of Article III of the Constitution.

      We’ll skip the next 36 years of legal developments to keep this blog a reasonable length. In 2021 the Supreme Court decided, in TransUnion that Congress could not create a right to sue and expect the statutory injury would automatically satisfy the requirements of Article III. Congress could create a statutory injury but only the Supreme Court could decide whether the statutory injury was good enough for Article III. In TransUnion the Court decided that some of the victims of the law concerning credit reporting had suffered an injury sufficient for Article III standing, but others who were also victims with a right to sue had not because they had not been affected in any way by the violation.

      The problem for tester standing is obvious. If the black tester in Havens Realty had only suffered a statutory injury (being lied to) but that did not result in any real injury (because the truth didn’t matter) maybe tester standing was not enough to satisfy Article III of the Constitution. Soon there were soon both scholars and bloggers like me suggesting that Havens Realty might be dead and tester standing along with it. If testers didn’t want to rent an apartment, use a website, or buy from a business then being turned down because of race or disability didn’t matter and Article III was not satisfied.

      This is why there is so much riding on Arpan Hotels v. Laufer. Laufer goes to hotel websites to see if they have the information about accessibility required by ADA regulations. She does not intend to go to the hotel, she wants the information for its own sake. If it is missing, she sues. That sounds very much like the black tester in Havens Realty, who was entitled to truthful information although he had no use for it. If Laufer does not have an injury that satisfies Article III then fair housing testers might not either and so a victory for the hotel could spell the end of FHA testing as well as ADA testing.

      The case is in the Supreme Court because different courts of appeal have different views of whether a plaintiff like Laufer has standing after the TransUnion decision. The pro-Laufer courts of appeal say that she suffered either or both of an “informational injury” or a “dignitary harm.” The argument for an “informational injury” is simply that if Congress says you have a right to information then being deprived of that information is a real harm because you have a right to it. It doesn’t matter whether you needed it or not. The “dignitary harm” argument is that those with disabilities and others that have been discriminated against feel a special emotional distress when they see violations of the anti-discrimination laws even if the violation doesn’t make any difference to them other than making them feel bad.

      These arguments are still possible because the Supreme Court found it hard to precisely define just what Article III requires. The conservative members of the Court look to the law as it existed in the late 18th century when the Constitution was written as a guide what it means. The common law causes of action that existed at the time were the starting point for finding a sufficient injury for Article III. If an injury looked like an injury that you could sue for in 1789 then it was good enough for the Constitution. The Court recognized that there could be newer kinds of injury, but similarity to common law injuries was key. They also looked back to Warth v Seldin and the concern that if anyone could sue to vindicate the public interest, rather than their own private interests, you might get private law enforcement that interfered with the agencies charged to protect the public interest. Based on earlier cases like Spokeo Inc. v. Robins the Court found that a injury had to be “concrete” and “particularized” to satisfy Article III.

      It isn’t hard to see how the arguments line up for and against standing for testers given these parameters. Those who believe Laufer should have standing argue that once she was given a right to information taking it away from her was very much like common law claims related to theft. This argument was aided by the Supreme Court’s recognition in cases like Fed. Election Commn. v. Akins that an informational injury could support standing. TransUnion suggested that informational injury could stem from being denied information that was required to be publicly available (good for the Laufer side) but insisted that it also had to “downstream consequences” or “adverse effects.” (not so good for the Laufer side).

      There is also the argument that Laufer and other testers suffer a “dignitary harm” similar to that suffered by those who are defamed. The Supreme Court has often recognized that dignitary harms can be actionable, so they neatly fit the “like the common law” requirement. The Justices even glanced at the question of whether a dignitary harm was sufficient for standing in Trump v. Hawaii, but just long enough to say they didn’t have to answer that question. The problem here is that dignitary harm is usually actionable only when there is some other harm – for example to reputation. Equally important, if information is supposed to be available to all the dignitary harm suffered by a tester like Laufer is indistinguishable from the harm suffered by every other person who wants but cannot find the information. If invoking “dignitary harm” allows someone with no distinct interest in the information to have standing we are back to individuals who sue to enforce the public interest rather than their private interests.

      So, does Laufer being offended by a statutory violation constitute a sufficient harm for Article III? The ultimate argument on the pro-Laufer side of the dispute about standing goes like this:

      • Being subjected to discrimination (as in Havens Realty) is bad in a way that has been recognized in many cases. No one should be treated differently because of their race or disability, regardless of the circumstances.
      • Not including accessibility information on a hotel website is defined as a kind of discrimination in the ADA. It may not be treating people differently, but it is “discrimination” because Congress said it is.
      • Thus even though both the non-disabled and disabled are treated the same because neither gets the information, the “discrimination” is just as bad as if they were treated differently.

      It is a tortured argument because, of course, treating people the same isn’t the same as treating them differently. The most important holding in TransUnion is that Congress cannot create an Article III injury just be defining a statutory violation as an actionable injury. The ADA and FHA both recognize that equality of treatment may not result in equality of opportunity and so in some cases they define “discrimination” as equal treatment when the law requires special kinds of unequal treatment. Nonetheless, defining equal treatment as “discrimination” does not make it the psychological or dignitary equivalent of differential treatment. In some respects claiming Laufer suffered the same harm from knowing there was a technical violation of a DOJ regulation that a young black person suffered when refused service in a diner is offensive. Defining equal treatment as discrimination does not make it so; indeed, one of the reasons Congress had to put in place standards that require special treatment for the disabled is that there is no historical precedent for equal treatment being actionable.

      I don’t know how the Supreme Court will come down on these arguments, but there is an obvious way to preserve tester standing without supporting the current litigation industry based on testing. Simply hold, consistent with earlier precedent, that differential treatment causes a concrete and particularized harm to those who experience it. At the same time being exposed to some failure to satisfy the thousands of pages of technical regulations that define the inequality of treatment required to give those with disabilities equal opportunity only constitutes an injury to those who have a reason to care. Those who suffer from differential treatment suffer a concrete and particularized harm; those who merely see a violation of a highly technical regulation suffer no harm at all.

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      ¹  This very abbreviated explanation is bound to miss all the subtleties, but those interested can download all the briefs in the Acheson Hotels case from the Supreme Court’s website.

       


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    • Acheson Hotels: tester standing at the crossroads part 1.

      Now that everyone (and I mean everyone¹ ) has weighed in on tester standing as presented to the Supreme Court in Acheson Hotels v Laufer I thought I might as well try to explain the issue for those who don’t live and breathe disabilities rights litigation.

      In my next blog I’ll look at the legal arguments about tester standing, but first I want to talk about a more practical question. Why did this case generate 16 amicus briefs filed by a total of 47 organizations?  The legal questions are fascinating, but the intense interest in the case has nothing to do with those questions. It stems instead from the way tester standing has developed since the 1960’s from being a useful tool to root out discrimination into the fuel driving a new kind of industrial litigation in the 1990’s.

      To start at the beginning, “tester standing” is the shorthand description of individuals who seek out discrimination so they can enforce the civil rights laws. There is no question that the government can enforce its laws – that’s what the Department of Justice does. Congress however believed that to get rid of discrimination would require more lawsuits than the DOJ had time and resources to file, so it created private rights of action under those laws, turning enforcement over to the private sector. Testing is done by  individuals and organizations that enlisted in what Congress called an “army of private attorneys’ general” to enforce the civil rights laws.

      Of course there were victims who got drafted into this army because they couldn’t rent the apartment they wanted or get the job the deserved.  Unfortunately, individuals of the kind who certainly suffer from discrimination cannot be relied upon to file a lawsuit, especially when, as is the case with the ADA, there is nothing in it for them. In addition, relying on random acts of discrimination to generate enforcement actions might not result in rational enforcement, especially when the discrimination is subtle. You can’t fight an effective war against discrimination relying on the individual choices of victims of discrimination.

      The solution, developed long before any disability rights laws were passed, was the use of mercenaries, more politely called testers². Testers would go out and pretend to be interested in buying or renting or patronizing a business to see how they were treated. In the pre-disability rights era this typically meant seeing whether a white tester and a Black or Hispanic tester were treated differently. By the time the ADA and FHA were passed in the late 1980’s and early 1990’s testing was very widely used by civil rights organizations to find and prosecute discriminatory conduct and had the imprimatur of the Supreme Court in the Havens case.³

      Any tool that can be used can also, it turns out, be misused. Very soon after the ADA was passed lawyers realized that testing represented a great opportunity to generate lawsuits and legal fees. Why wait for someone to get hit by a car or slip on a spilled carton of milk at Walmart when you could simply persuade a disabled plaintiff to look for litigation as a tester? As a bonus the ADA and FHA included a unique kind of no-fault discrimination; the failure to design and build housing or business establishments to a set of complex design standards. And the FHA disability discrimination provisions included a right to accommodation that required only being treated badly, regardless of whether others were treated badly. Testers no longer needed to go out in pairs looking to be treated differently. Instead, a single disabled tester could drive around looking for a lack of accessible parking or similar obvious design/build violations and then file suit. In the FHA context they could just call landlords, ask a few questions, and hope for a wrong answer. After the Department of Justice announced that it believed the ADA covered the internet testing became even easier. There was no need to drive anywhere or even make a phone call – a disabled tester could roam the internet looking for inaccessible websites from the comfort of their living room.

      Tester standing was not a fan favorite of businesses before the ADA and FHA disability rights provisions were passed, but after Havens there wasn’t a huge effort to oppose it. After all, it is hard to be against a system that generates a relatively small number of lawsuits against obvious racists, which is what most testing did. Disability rights testing, on the other hand, soon generated a lot of criticism. The design/build requirements are not always obvious and liability does not depend on fault. In fact, for the internet there are still no legal standards so even a business that wants to have an accessible website doesn’t know exactly what the law requires. The people getting sued under the disability rights provisions of the ADA and FHA were not evil; they were negligent. More important, traditional testing was relatively time consuming and expensive, so the number of lawsuits generated was relatively small. ADA testing was quick and cheap – a single plaintiff could generate a dozen lawsuits a day. The only limit on quantity was what the lawyer could afford to pay in filing fees.

      Industrial scale litigation of the kind practiced by ADA litigation specialists was obviously problematic. While the lawyers portrayed themselves as advocates for the disabled they very often just took the money and ran, making no effort to make sure the problem that triggered the lawsuit was ever fixed. Also, because the litigation model involved settling for a small enough amount that a defense was senseless, ADA plaintiffs filed suit over trivial technical violations of the design standards that made little or no difference to the disabled.

      That brings us back to the intense interest in Acheson Hotels. The Appellee, Deborah Laufer, is not an attractive litigant. She has filed thousands of lawsuits against hotels she never plans to visit for the profit of her lawyers and very likely herself. She even abandoned this lawsuit when she feared she might lose, hoping to preserve her right to sue in the different courts that have allowed her to file suit. Unfortunately, this unattractive plaintiff is the standard bearer for tester standing, on which the civil rights community relies for its legitimate efforts to combat real discrimination.(4) The amicus briefs reflect on one side the business community’s concern with the amounts of money being spent on litigation of no obvious merit and, on the other, the concern of the civil rights community that it may lose a very effective tool simply because a group of mostly unscrupulous lawyers are abusing tester standing for their own profit.

      However, just as the rain falls on the just and unjust alike, the legal principles that govern tester standing do not take into account whether it is used for the public good or misused for private profit. In my next blog I’ll look at those legal arguments.

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      ¹ The following is a list of the parties who have filed amicus briefs in Acheson Hotels, LLC v. Laufer. The United States represents every citizen, so “everybody” is literally true.

      For Petitioner Acheson Hotels

      1. Retail Litigation Center, Inc.
      2. National Retail Federation
      3. Chamber Of Commerce of The United States of America
      4. American Resort Development Association
      5. American Bankers Association
      6. ICSC
      7. Atlantic Legal Foundation
      8. DRI Center for Law and Public Policy
      9. Restaurant Law Center
      10. American Hotel & Lodging Association
      11. National Federation of Independent Business Small Business Legal Center, Inc.
      12. RI Hospitality Association
      13. Puerto Rico Restaurant Association/Asociación De Restaurantes De Puerto Rico
      14. New Hampshire Lodging & Restaurant Association
      15. Massachusetts Restaurant Association
      16. Hospitality Maine
      17. Center for Constitutional Responsibility
      18. Buckeye Institute
      19. Maine Policy Institute
      20. Job Creators Network Foundation
      21. National Real Estate Investors Association,
      22. Ohio Hotel and Lodging Association
      23. National Association of Home Builders of the United States

      For neither party

                  United States of America

      For Respondent Deborah Laufer

      1. NAACP
      2. American Civil Liberties Union Foundation
      3. American Civil Liberties Union Foundation of Maine
      4. National Women’s Law Center
      5. Impact Fund
      6. Lawyers Committee for Civil Rights Under Law
      7. Lambda Legal Defense and Education Fund
      8. Howard University School of Law Civil Rights Clinic
      9. Constitutional Accountability Center
      10. National Fair Housing Alliance and it 50 member organizations
      11. Antidiscrimination Law Scholars
      12. Public Citizen
      13. Massachusetts,
      14. Connecticut
      15. The District Of Columbia
      16. Illinois
      17. Maryland
      18. New Jersey
      19. New York
      20. Oregon
      21. Washington
      22. Philip L Schuler, Jenny Rodriquez-Fee and Michael M. Epstein in ass’n with Amicus Project at Southwestern Law School
      23. Disability Rights Education and Defense Fund

      ²  I should emphasize that many testers are volunteers working for legitimate civil rights organizations, including those who filed amicus briefs. They are mercenaries only in the sense that they signed up for the fight. This is not true, however, of many of the “testers” who file industrial scale lawsuits of the kind I discuss in this blog. Tester standing makes allies of the purely noble and the purely greedy.

      ³ I have had a thing or two to say about Havens. See, among others, ADA serial litigation – will the Supreme Court cut off the head of this snake?

      Stigmatic Injury, how the 11th Circuit got it wrong

      Laufer v Looper – the death of tester standing

      Laufer v Looper Ch. 2

      (4) The division between the legitimate and (in my view) illegitimate uses of the ADA and FHA is not as black and white as this makes it seem. Many legitimate civil rights organizations believe there is no such thing as a bad tester or a misuse of the ADA and FHA. In their view all discrimination is intentional and evil and those who fail to maintain a 2% or less slope in accessible parking are no different than the landlord who refuses to rent to blacks.


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    • California versus the Constitution – who can regulate internet accessibility?

      picture of the opening paragraph of the U.S. ConstitutionSeveral other sources have reported on recent legislation in California that would establish WCAG 2.1 AA as the minimum accessibility requirement for websites that do business in California.¹ The bill is a disaster in many ways, but rather than look at its many individual flaws I think it is useful to ask whether the entire law is invalid as an improper attempt to regulate interstate commerce. That’s right, the “dormant commerce clause” could make this and any similar effort by other states invalid.

      The dormant commerce clause, for those who did not take Constitutional Law at some point in their lives, is a kind of mirror image of the Commerce Clause. The Commerce Clause – Article 1, Section 8, Clause 3 of the U.S. Constitution – gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The dormant commerce clause interprets this to mean that states cannot make laws that excessively burden interstate commerce; that is, only Congress can regulate interstate commerce and state laws that have the effect of regulating it are not valid.

      The reach of the dormant commerce clause has been the subject of many Supreme Court decisions, so summarizing its reach is almost impossible. However, it would seem that it certainly includes any effort by the states to establish minimum accessibility requirements for websites. Here’s what the Supreme Court observed in 1989 about the dormant commerce clause:

      First, the “Commerce Clause … precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State,” . . . and, specifically, a State may not adopt legislation that has the practical effect of establishing “a scale of prices for use in other states,” . . . Second, a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature. The critical inquiry is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State . . . . Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation. Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.

      Healy v. Beer Inst., Inc., 491 U.S. 324, 336 (1989). Taking these up one at a time, the California bill would certainly affect commerce taking place outside the State of California, not only because it regulates websites that are available in other states, but also because it regulates the design and development of websites that might take place outside the State of California. More important, the bill will almost certainly interact with the legitimate regulatory regimes of other States, because if California can decide what it means for a website to be accessible then other States can certainly do the same. Websites would potentially be subject to fifty different accessibility standards as well as whatever regulatory standard the Department of Justice ultimately chooses for the ADA.
      Despite the obvious extraterritorial effects of internet regulation the Ninth Circuit and other courts have suggested the dormant commerce clause does not forbid such regulations. In Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 433 (9th Cir. 2014) the Court held that even if California’s Disabled Persons Act required captioning videos on the internet the law did not interfere with interstate commerce because:

      Even though CNN.com is a single website, the record before us shows that CNN could enable a captioning option for California visitors to its site, leave the remainder unchanged, and thereby avoid the potential for extraterritorial application of the DPA.

      This followed the rationale in one of the very first internet accessibility cases, Natl. Fedn. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 961 (N.D. Cal. 2006). The assumption in both cases is that because websites can be targeted to particular geographic areas any website owner can comply with a state regulation by just creating a separate website for that state..
      Despite the notion that websites can simply target their content to particular states courts have held that content regulation violates the dormant commerce clause. For example, a Vermont law forbidding internet transmission of pornography to minors violated the dormant commerce clause because, given the interstate nature of the internet, it inevitably regulated activities that were wholly outside the state. Am. Booksellers Found. v. Dean, 342 F.3d 96, 104 (2d Cir. 2003).  The same was true of a California law that forbade the display of information about state legislators on websites that were run and viewed outside the state. Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1023 (E.D. Cal. 2017).
      The difference in these two lines of cases seems to be whether the court has a real appreciation of just how expensive it would be to create fifty different websites to comply with fifty different sets of state regulation and then make sure that users in one state only had access to their state’s website. While that might be possible for CNN or Target, it certainly isn’t possible for the hundreds of thousands of small e-commerce websites and blogs run by individuals or small businesses that do not have the resources to make one website perfectly conform to WCAG 2.1 AA, let alone make sure that their non-conforming website could not be reached by someone in California. The internet has, in many ways, begun to erase the difference between local and interstate commerce that is central to the analysis of commerce clause issues and it has done so for businesses with very small amounts of revenue. As a practical matter regulating internet accessibility is always going to be a burden on interstate commerce that has the potential to destroy hundreds of thousands of businesses.
      This doesn’t mean accessibility regulation is impossible; only that it has to be the exclusive province of Congress or the DOJ and that it must be implemented with sensitivity to the costs it imposes on small internet businesses.²  There isn’t any evidence that DOJ is capable of such sensitive regulation, but the pending bill in California proves that state legislatures certainly cannot do so.

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      ¹ The most thorough analysis is found in “New California Assembly Bill on Website Accessibility Could Result in a Lawsuit Tsunami” published by Seyfarth Shaw.

      ² There is an argument to be made that the ADA will preempt any state laws concerning website accessibility as soon as DOJ adopts accessibility standards applicable in all fifty states. That argument seems to be at least a few years away given DOJ’s very slow movement toward adoption such regulations.


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    Richard Hunt, author