Happy Fourth of July holiday everyone!

 

Today’s case, National Association of the Deaf et. al. v. State of Florida et. al., comes to me from Courtney Cunningham who has been working this case for some time. The National Association of the Deaf (by way of disclosure, I have known the Executive Director of NAD for years), also stepped in. As usual, the blog entry is divided in the categories and they are: facts; issues presented; holdings; court’s reasoning sovereign immunity; court’s reasoning failure to state a claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Also, a heads up with respect to the following two weeks. My daughter comes back from camp on Monday after being away for four weeks. So, next week could be really interesting. With respect to the following week, my daughter starts school August 1 (I know we start really early here), and so a blog entry might not go up until the middle of that week. Now, turning to our case of the day…

 

I

Facts

The Florida Senate and Florida House livestream their legislative proceedings through a website and maintain archives of those videos. Florida State University also owns or operates a website that livestreams legislative proceedings and maintains archived recordings of such videos. The videos are not captioned. Videos are also posted on social media and those are not captioned either. In July, 2017, Sierra, a Deaf individual and a member of NAD sent a letter to the Florida Senate and to the Florida House requesting that they provide captions on the videos of their legislative proceedings. Neither responded to his letter or provided captions. NAD then filed a complaint against the Florida Senate and the Florida House with the Federal Communications Commission, probably because of this blog entry, different case involving the same plaintiff. That complaint was closed in March, 2018. NAD brought suit on behalf of its members, which included the complaining party, seeking monitory and injunctive relief. Defendants through the Florida Channel (a public affairs programming service wholly funded by the Florida legislature and produce and operated by Florida State University’s PBS station), responded to the FCC complaint by saying the Florida Channel produces a 24 hour television programming feed that is closed captioned. Any segment of legislative videos aired on that program are captioned. It also livestreams legislative proceedings, which is separate from the 24 hour television program. Those videos, which come from a different source than the captioned video displayed on the 24 hour television program, are put up on the Internet and made available to the public but do not include captions.

 

II

Issues Presented

  1. Is sovereign immunity applicable?
  2. Did plaintiffs fail to state a claim?

III

Holdings

  1. No
  2. No

IV

Court’s Reasoning regarding Sovereign Immunity

  1. A trend in the courts exists stating that absent the need to vindicate a fundamental right or protect a suspect class, Congress may not abrogate a State’s sovereign immunity.
  2. Relying on a decision from the Western District of Oklahoma, the court said that the plaintiff had a fundamental right of access to publicly available information needed to participate in the democratic process. Also, the Western District of Oklahoma noted that in enacting the ADA, Congress found pervasive discrimination by State governments against persons with disabilities, including the deaf and hard of hearing with respect to judicial resources.
  3. Plaintiffs are not seeking just any public information, but information going to the very heart of the democratic process-the text of legislative proceedings. Accordingly, the fundamental right to participate in the democratic process is involved.
  4. Even if the fundamental right to participate in the democratic process is not involved, sovereign immunity is still forcibly waived because Congress found pervasive discrimination by State governments with respect to those with hearing loss.
  5. Justice Breyer in his dissent in the Board of Trustees of the University of Alabama v. Garrett documented more than a thousand instances of State discrimination against those with hearing loss in a variety of contexts.
  6. In the ADA’s findings section, 42 U.S.C. §12101(a)(3), Congress noted discrimination against individuals with disabilities in a variety of critical areas, including access to public services.
  7. Adding captions to legislative videos removes a barrier to access for a service already provided to those who do not have a hearing loss. Further, the ADA allows defendants certain affirmative defenses. Accordingly, title II of the ADA is a congruent and proportional application of the 14th amendment and sovereign immunity is forcibly waived.
  8. Sovereign immunity does not apply where the plaintiff seeks prospective injunctive relief against individuals heading State entities, which is the case here.
  9. Where a State receive federal funds, sovereign immunity is waived. It is simply too early in the case absent discovery to reach the conclusion that the State does not take federal funds.

V

Court’s Reasoning Failure to State a Claim

 

  1. Stating a claim under title II of the ADA or §504 to Rehabilitation Act means showing: 1) plaintiff is a qualified individual; 2) plaintiff was excluded from participating in a public entity’s services, program, or activities; and 3) plaintiff was discriminated against because of his disability.
  2. Citing to the case we discussed here, the court said whether plaintiff was excluded from the public service turns on whether he had an equal opportunity as someone without a disability.
  3. Florida Channel’s response to plaintiff’s FCC complaint indicated that some legislative proceedings are broadcast with close captioned but not all. A person without a hearing loss gets to watch all legislative proceedings online, but a person with a hearing loss may watch only those legislative proceeding that the Florida Channel chooses to broadcast. That does not constitute an equal opportunity.
  4. Proving deliberate indifference as we have discussed previously, means showing that the defendant knew that harm to a Federal protected right was substantially likely and failed to act on that likelihood. Here, allegations in the complaint are that the plaintiff gave defendant notice of the alleged violations of title II of the ADA and §504. Further, NAD filed a complaint with the FCC prompting a response from defendants. Also, Sierra sent letters to the Florida House and to the Florida Senate, which the defendants never responded to. Finally, defendants response to the FCC complaint indicates no intent to change their current practices.

VI

Takeaways

  1. If you are a State legislature streaming legislative proceedings live, you better be sure they are captioned.
  2. Accessing publicly available information needed to participate in the democratic process is a fundamental right and therefore, any discrimination is subject to strict scrutiny.
  3. Language in the opinion suggests that with respect to discrimination against people with hearing loss, title II may be across-the-board, a permissible use of the equal protection enforcement clause.
  4. Sovereign immunity does not apply to injunctive relief.
  5. If you are representing a State agency and claim that you do not receive federal funds, that by itself, will not get you a motion to dismiss165
  6. .
  7. Whether a person is excluded from a program, service, or activity turns on whether that person has an equal opportunity as someone without a disability.
  8. As we discussed in the blog entry noted above, deliberate indifference but not mean the same thing as deliberate indifference in tort law.
  9. Due to what deliberate indifference means, it makes a great deal of sense for a plaintiff to issue a demand letter before filing suit under title II of the ADA. Such a letter would put the defendant on notice that a Federal protected right was involved and that they may be failing to act on that likelihood.

 

Have a safe and happy Fourth of July everyone!

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