The capitol Building
Legislative Branch

 

After a two-month period, where my computer was completely on the fritz, I may have finally fixed it. It turns out that Windows itself had become corrupted and that it needed to reinstall Windows. Once I did, that fixed the problem. You wouldn’t believe what I went through before I finally got to that point. Nevertheless, things are good to go, and I couldn’t be more excited. Next week is Thanksgiving week, and I will be in Chicago doing the family thing. So, I will be taking the week off. Accordingly, this is going to be my last blog entry for the next couple of weeks until the week after Thanksgiving. I do want to wish everybody a happy Thanksgiving and safe travels if you are traveling.

 

Today’s case came to me from Larry Berger, a member of the deaf and hard of hearing Bar Association. If you are a deaf/Deaf/hard of hearing attorney, I highly recommend the Association. It turns out that the attorney for the plaintiff is someone that I know and am quite familiar with her work, Mary Vargas of Stein and Vargas. She was kind enough to send me the decision since I could not find it on Lexis or Google scholar. Congratulations to Mary! The case is Reininger v. State of Oklahoma (CIV-16-1241-D) decided by the Western District of Oklahoma on November 9, 2017. As is usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts:

The facts are pretty straightforward. The plaintiff is deaf and tracks the status of state legislative bills, particularly ones affecting persons with disabilities. The Oklahoma State Senate, the Oklahoma House of Representatives, and their respective leaders maintain Internet websites showing live feeds of legislative hearings and proceedings. Plaintiff claimed that he did not have meaningful access to this information because the audio content of the online broadcasts is not captioned, and so he cannot understand what is being said. He contacted both legislative bodies about the lack of captioning and asked them to bring the websites into compliance with federal disability discrimination laws. While apparently noncompliance was admitted, captioning was not provided due to budgetary constraints. Allegedly captioning would be cost prohibitive and technologically difficult. As an alternative, interpretive services were offered to the plaintiff if the plaintiff were to give advance notice that he wanted to attend a proceeding. Plaintiff then brought suit alleging violations of title II of the ADA and §504 to Rehabilitation Act and sought declaratory judgment, compensatory damages, and injunctive relief. Defendants defended on the grounds of sovereign immunity under the 11th amendment and also defended under the 10th amendment as well.

II

Court’s Reasoning

In rejecting the defendants 11th and 10th amendment claims, the court reasoned as follows:

  1. No doubt exists that Congress intended to waive sovereign immunity of the States regardless of their consent when it came to the ADA. So, the only question is whether that waiver is consistent with the enforcement clause of the 14th
  2. When it comes to title II and sovereign immunity, three questions must be addressed at the outset: 1) what aspect of the State’s alleged conduct violated title II; 2) to what extent such misconduct also violated the 14th amendment; and 3) if the misconduct violated title II but not the 14th amendment, whether Congress’s purported abrogation of sovereign immunity with respect to that class of conduct is nevertheless valid.
  3. The particular conduct alleged in the complaint was failure to caption streaming video of legislative sessions.
  4. Plaintiff did not allege a violation of the 14th amendment in his complaint.
  5. Once the initial questions with respect to sovereign immunity, mentioned above, are addressed, three other questions have to be considered in order to assess whether the legislation is consistent with the enforcement clause of the 14th amendment and they are: 1) the nature of the constitutional right at issue; 2) the extent to which Congress’s remedial statute was passed in response to a document history of relevant constitutional violations; and 3) whether the Congressional statute is congruent and proportional to the specific class of violations at issue given the nature of the relevant constitutional right and the identified history of violations.
  6. The overarching issue here is the citizen’s right to participate in the political process and to have meaningful access to the tools necessary for such participation.
  7. The fundamental right of access to the courts and participation in court services is analogous to the right to participate in the political process impaired by a lack of access to legislative statements by elected representatives. Physical access to a public forum doesn’t mean anything if the person with the disability is denied access to publicly available information that allows equal participation in the political process.
  8. The right to engage in the political process equally to others is encompassed in the First Amendment right to petition the government for redress of grievances. If a citizen cannot access information about the legislative positions of his or her representative, then the citizen’s ability to adequately petition the government and participate in the political process is severely impaired.
  9. The United States Supreme Court has recognized a First Amendment right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences through broadcast media. Any restrictions on the broadcasting industry has been for the purpose of securing the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. By analogy, the same thing applies to the Oklahoma legislature when they are engaged in Internet broadcasting of proceedings to the public, thereby, creating an analogous right of access to the information about state legislative matters.
  10. The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process is a fundamental right and therefore, subject to heightened scrutiny.
  11. A historical record and pattern of constitutional violations existed when it came to enacting title II of the ADA. In particular, discrimination against individuals with hearing loss was explicitly mentioned in a variety of different contexts.
  12. While the ADA does not have a requirement for legislative proceeding to be broadcasted, it does require that a qualified individual with a disability be afforded equal participation and benefits of the services, programs, or activities of a public entity. That was necessary because of discrimination against persons with disabilities persisting in such areas of public accommodation, education, transportation, communication, recreation, voting and access to public services. Here, plaintiff is clearly a qualified person with a disability and legislative proceedings are activities of a public entity with the Internet broadcast of those proceedings being a public service.
  13. In a footnote, the court noted that public accommodations may not be limited to buildings and physical structures, but also noted that courts have gone both ways on the matter.
  14. Since a fundamental right is involved, title II of the ADA is a proportional response to the harm being redressed, and especially so, since title II allows public entity to assert affirmative defenses of undue burden and fundamental alteration so that required accommodations are not overly burdensome.
  15. In a footnote, the court said that even if a citizen’s right to meaningful participation in the political process and to access publicly available information needed to participate in that process was not a fundamental right, sovereign immunity was still properly waived because of pervasive unconstitutional state conduct. That is, you also have here: 1) a persistent pattern of exclusion and irrational treatment of persons with disabilities; 2) gravity of harm from such discrimination; and 3) limited compliance costs.
  16. Finally, the court found that any 10th amendment claim was premature as that went to the relief to be granted rather than whether the case could go forward.

IV

Takeaways:

  1. I have seen over and over again defendants claim that sovereign immunity applies unless a constitutional violation is alleged. That is simply not the law, and this case makes that point clear.
  2. This court does a nice job of laying out the analytical framework for dealing with sovereign immunity questions. It is a two-step process with six different questions.
  3. The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process are fundamental rights.
  4. The way sovereign immunity works, as we have discussed previously, is once the equal protection category is determined, the rest of the analysis follows without difficulty. Here, since a fundamental right was found, that means a law could require just about anything and it will be a proportionate response to the harm being redressed.
  5. Very interesting that the court in a footnote saw fit to mention that places of public accommodations very well may extend beyond buildings and physical structures, a point which we have discussed extensively in the blog.
  6. The court also left itself an out if somehow a fundamental right was not found to be by saying that the plaintiff could also win under the pervasive unconstitutional state conduct theory.
  7. I have never seen a 10th amendment claim before. The court doesn’t rule it out, but says that it is premature at the pleading stage.
  8. This case should be a wake-up call for public and even private entities using live video, but not captioning them. It’s a real problem. Just within the last month, I have run into this issue with respect to three webinars that I either eventually attended or wanted to attend. No, I didn’t do anything legally but I could have….

HAPPY THANKSGIVING!

3 Responses to Sovereign Immunity in the Absence of Constitutional Violations

Thanks for the kind mention. I am not actually a member of Deaf and Hard of Hearing Bar Association (though I do have some hearing loss, and wear hearing aids, and I had better join if they will have me). I learned about the Oklahoma case through a different group, the Disability Rights Bar Association.

Larry,

Someone from your group (for those who don’t know, a group of attorneys that represent persons with disabilities), posted it to the deaf and hard of hearing Bar Association Facebook page and I just assumed. Well, we know how that goes:-)

Happy Thanksgiving!

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