I recently came across this article on the Internet discussing a case where the parents of an 8-year-old boy who is deaf are suing Greensburg, Pennsylvania, for failing to provide an interpreter for the child while he plays in the city soccer program. According to the article, the suit was filed on May 29, 2014, in federal court in Pittsburgh for the child, who is referred to as “S.A.” in the complaint. His parents are identified only by initials, “A.A.” and “J.A.” They asked the court to rule the city discriminated against the boy by not supplying an American Sign Language interpreter and to order the city to supply one in the future. But the city contends it is under no obligation to provide an interpreter for a non-resident playing in a voluntary league. In addition, the parents seek compensatory damages and for the city to pay the costs to file the suit.
As everyone knows, I have long been interested in how the ADA applies to sports. Thus, I thought I would blog about this case. Keep in mind, we don’t know the facts except for what is contained in the article. Most assuredly, the facts are more complicated than what appears in the article. The article also says that the city estimates that it would cost between $6000 and $10,000 a year for the two season program (soccer is played in the fall and in the spring).
The blog entry is divided into two parts. In addition to the facts and introductory comments above, the other two parts discuss the relevant law and then, how the law might play out. The reader is free to focus on either or both of the sections.
The Relevant Law:
1. Again, we don’t know all of the facts, but I do have experience with city recreational leagues and they probably work similarly no matter where you are. That is, the city runs a recreational league. People who live in the city get a discounted rate to participate in a recreational league. People who live outside the city have to pay extra. The city is responsible for coming up with the schedule and making sure that the league runs properly. They are also responsible for paying the officials to referee the games. Otherwise, the coaches are entirely volunteers. What this means, is that both residents and nonresidents are accessing the programs and activities of the municipality in the same way, though at a different fee.
2. Obviously, the child is a person with a disability since he is deaf. That is, he has a physical impairment that substantially limits the major life activity of hearing.
3. Is the child otherwise qualified (Rehabilitation Act) or qualified (ADA)? Such a person would have to be able to show that he can with or without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barriers; or the provision of auxiliary aids and services, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity (28 C.F.R. § 35.104).
4. Auxiliary aids and services were not defined in the ADA as originally enacted. However, the amendments to the ADA do define auxiliary aids and services. In particular, such aids and services include: 1) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; 2) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; 3) acquisition or modification of equipment or devices; and 4) other similar services and actions. (42 U.S.C. § 12103(1)).
5. As we have discussed previously,
the effective communication regulation requires the public entity to give primary consideration to the preferences of the individual with a disability.
6. Of course, a title II entity always has as a possible defense that the requested accommodation is either an undue burden or fundamentally alters the nature of the program or activity. However, for a title II entity to be successful in such a defense, the burden falls on the public entity and must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reason for reaching that conclusion (the Ninth Circuit in K.M. v. Tustin Unified School District _F.3d_, 2013 WL 3988677 (9th Cir. August 6, 2013), cited the written certification language with approval, but it is not a provision of the regulation that is commonly litigated)). Finally, that regulation requires that the public entity take any other action that does not result in an undue burden or a fundamental alteration, but nevertheless ensures to the maximum extent possible that the individual with a disability receives the benefits of the services, programs, or activities provided by the public entity.
7. So Where Do Paragraphs 1 to 6 Leave Us, or How Does the Relevant Law Play out?
A. Since the child is deaf and is otherwise able to participate in the soccer program absent the interpreter, the child’s certainly gets to first base.
Also, the fact that the child is a nonresident shouldn’t matter, since the child is trying to access the municipality’s programs and activities in the same way as residents, albeit probably at a higher fee.
B. It is extraordinarily difficult to believe that supplying an interpreter would fundamentally alter the nature of the soccer program.
C. That leaves the city with saying that supplying the interpreter costs too much money. Such a defense has several problems to it. First, the ADA in the statute itself, as noted above, specifically mentions interpreters as a reasonable modification of a program or activity. Second, the effective communication regulation requires that primary consideration be given to the request of the person with a disability. The Department of Justice technical assistance manual for title II of the ADA
says that “primary consideration,” means that the public entity has to honor the choice unless it can demonstrate that another equally effective means of communication is available or that using such means results in a fundamental alteration or undue financial or administrative burden to the service, program, or activity. Since with respect to the undue financial burden defense, all resources must be considered, it may be difficult to show that the cost of the interpreter, while considerable, would constitute an undue financial burden as the term is understood with respect to its legal meaning under the ADA.
D. In short, for the reasons explained here, this looks like it is going to be a very tough case for this particular municipality to win. Again, we don’t know all the facts.