In this article, originally published on an email list, Fred Shotz outlines problems with the Dept. of Justice's Public Access Section under the Bush Admininistration.
Justice delayed -- again and again
In late September, at a settlement hearing in the case of Access Now v. Carnival Cruise Lines, the U.S. Dept. of Justice's Public Access Section filed an objection. In the brief filed with the court, the Dept. made the amazing statement that their objections were based in part on the fact that Access Now has filed and settled too many cases!
Over the last decade, there has been a great deal of criticism of the U.S. Dept. of Justice from the community of people with disabilities. They have been accused of filing too few lawsuits, of taking too long to respond to complaints. I work with private attorneys who receive no public funding but who file, try, and settle far more ADA lawsuits each year than the number of suits filed by the Dept. over the last 11 years.
A number of months ago the Dept. published an announcement of their successful work in getting a number of city governments to comply with the requirements of Title II of the ADA (online at http://www.usdoj.gov/crt/ada/pubs/10thrpt.htm). Each of these local governments had been functioning in violation of the ADA for the past five or more years -- and none agreed to do anything more than to begin to come into compliance with the requirements of Title II. There was no punishment for the failure to comply with our civil rights law. There was no haste attached to their future compliance. The Dept. simply set the clock back to the beginning of the compliance requirements and gave each local government a period of additional years to meet the requirements that should have been met years ago.
DOJ sent press releases out some time back concerning the settlement of their lawsuit against Days Inn Hotels. That was an excellent settlement -- but it addressed less than one half of one percent of the hotels currently in violation of the ADA. A single individual in Florida has, through lawsuits, caused more than 10 times the number of hotels to come into compliance with the ADA than all of the cases against hotels filed by Department since 1992, including the Days Inn case.
The Department took on the State of Hawaii a couple of years ago over the refusal of Hawaii to admit service dogs accompanying people with disabilities visiting that state. After many months of negotiation, the Department accepted a settlement that allows for a means of entry for people who are blind and who have guide dogs. They left out in the cold everyone who has a mobility assist service dog, everyone who has a hearing dog, everyone who has a seizure alert dog, everyone who has a psychiatric service dog, and every person who has trained their own service dog rather than waiting for years to obtain a service dog through one of the few programs that the Dept. allowed Hawaii to recognize. This "quick and dirty" settlement allowed the Dept. to declare a victory while leaving thousands of people with disabilities unable to visit one of the states of the United States.
The Dept. spent months negotiating a settlement with Avis Corporation over hand controls on rental cars. The settlement worked out between Avis and the Dept. was a reasonably good settlement. But once it was published, the Dept. became uninterested in whether the rental car industry complied or not. At this time one rental car company requires a 3-day advance notice to provide a hand control. This is their published policy, and it violates the requirements that the Dept. established in the Avis case. The settlement called for 24-hour notice. One rental car company stocks a single hand control at each of their locations, even though they have as many as 800 rental cars at each of several of their airport locations. If a second customer in a given time period requests a hand control, that person is simply turned away. Several rental car companies that require, in their larger airport locations, that customers take a shuttle to their office and car lot continue to not provide accessible shuttle services. The Dept. seems to care less about these continuing violations of the rights of people with disabilities. They did their job on one case and, with no follow up, they just moved on.
In 1993 I filed a complaint with the Dept. concerning accessibility at a small restaurant within a strip shopping center. I was clear in my complaint that the issues concerned the restaurant and the shopping center. The Dept. resolved the problems in the restaurant and never addressed the shopping center. Therefore, eight years later I have litigation in federal court against Walgreens over their store in this shopping center and against the branch of Bank of America in this shopping center. The Dept. could have fixed it all in one action but wanted the quick and easy settlement.
The Dept. of Justice has failed to publish as a final rule any requirements for accessibility since 1994. They have not published as a final rule any accessibility standards for children with disabilities. The accessibility guidelines for recreational facilities published by the Access Board in 1994 have never been published as a rule by the Dept. No guidelines have been developed and published concerning lines of sight at assembly facilities -- even though there have been numerous court cases caused by the lack of guidelines covering this issue. A U.S. District Court judge chastised the Dept. a few months ago over their failure in the last 11 years to develop accessibility guidelines for cruise ships.
Yet the inadequacies at the Dept. in the past are nothing compared to what has happened at the Public Access Section of the Dept. since the change in administration this past January. Throughout the Clinton years, Liz Savage was the political head of Public Access (her formal title Counsel to the Assistant Attorney General). Eight months into President Bush's term, no one has been appointed to that position.
My work gets me involved too often with access issues that are somewhat unusual. In the last six months I have noticed a change in the responses I get when I call the Dept. More and more often, the requirements of the ADA are being interpreted in as narrow a fashion as is possible. The perception of what is "readily achievable" seems to be significantly less than it was a year ago. I was shocked when a member of the technical staff told me last month that a car rental company that did not have accessible shuttle buses was not, in her opinion, in violation of the ADA. The reason for that conclusion was that the car rental company offered to transport the person with a disability in a station wagon rather than the person having to use the shuttle bus. (Of course the person could have stayed in his wheelchair had the bus been accessible.).
In late September, I attended the fairness hearing in the ADA case of Access Now verses Carnival Cruise Line. Both parties have reached a settlement that will result in all of the ships of the largest cruise line in the world being altered for accessibility. Not one person with a disability and not one disability related organization has objected to any of the terms of the settlement. To the shock of Access Now and their lawyers, the Public Access Section of the Dept. filed an objection to the class-action settlement. They then contacted the Florida Attorney General's office and sought their intervention as well. In the brief the Dept. filed with the court. they made the amazing statement that their objections were based in part on the fact that Access Now, Inc. has filed and settled too many cases. It is as though this active and effective advocacy association should not be trusted to craft this settlement because they are more active than the Dept. in seeking enforcement of the ADA. No examples were provided of bad settlements or settlements that did not serve the community of people with disabilities agreed to by Access Now.
The additional objection raised by the Dept., in their brief and at the hearing, was that this settlement would prevent people with disabilities from suing this cruise line in the future once the Dept. eventually publishes a final rule for cruise ship accessibility. In the face of strong questioning by the Judge, the DOJ lawyer acknowledged that there was no time frame for the publishing of a proposed rule for cruise ships, let alone a final rule that would be legally binding.
There were other objections raised by the Dept. as well.
It is important to point out that the lawyers for Access Now had asked DOJ's Public Access Section to participate in this lawsuit back when it was filed, but they declined. Access Now again asked DOJ to get involved when the settlement language was being developed earlier this year; again they declined.
Why had they refused to get involved earlier? At the hearing, they told the judge that because cruise ships are a "vacation issue," they did not see the case as being of sufficient importance for their involvement. This statement is very interesting when put in the context of the years the Dept. spent working on sports stadium access cases. The Carnival Cruise Line case was only important enough for them to fly a lawyer to Miami 14 days after the terrorist attacks on the United States so that they could try to sink this settlement.
From my experiences the past eight months, I've concluded that the Dept. of Justice's Public Access Section is not an ally of the community of people with disabilities. Their interpretations of the requirements of the ADA sound as though they come from the business owners and local governments seeking to find ways to avoid providing equal access to people with disabilities . The chance of the Dept. actually enforcing the ADA through legal action appears to be somewhere near zero.
Fred Shotz is president of ADA Consulting Associaties in Fort Lauderdale.
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