I was seven years old when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law in 1990. As a disabled kid at that time, I have always felt a particular tie to our nation’s foundational disability rights law — we effectively grew up together. So, I take it personally that the fate of the ADA is now under threat at the Supreme Court.
Many of my childhood memories were tinged by the reality that, before the ADA, I did not have the same legal right to access the world as my non-disabled friends and classmates.
There were no curb cuts in my small Pennsylvania hometown. Unable to cross safely at crosswalks, I had to dart from driveway to driveway in my tiny wheelchair. Every trip to the movies began with staff admonishing my family that I was a “fire hazard,” forcing me to transfer into a theater seat as a parent parked my wheelchair — my only means of exiting a building, burning or otherwise — 50 feet away at the front of the theater.
Millions of people with disabilities of all kinds endured much worse.
“Let the shameful wall of exclusion finally come tumbling down” was the phrase Bush famously proclaimed when he signed the ADA. America didn’t remove that wall overnight, but the ADA still felt like a declaration that U.S. law was finally on our side — the side of a more accessible future.
Alarmingly, the Supreme Court is now poised to take that declaration back. The court recently heard oral arguments in Acheson Hotels LLC v. Laufer, a civil rights case that could trigger a tectonic shift in the way the ADA is enforced. Depending on how the court rules, it could reinforce that old wall of exclusion and cause the ADA as we know it to crumble.
To gain the support of a Republican administration critical of government overreach, the ADA’s authors designed the law to rely heavily on private lawsuits for enforcement rather than proactive government oversight. As a result, there is no “ADA police,” no access inspectors. The most substantial legal incentive businesses have to comply is the threat of private legal action from everyday people with disabilities.
Deborah Laufer, the disabled woman serving as an ADA “tester,” is at the center of this case. She has filed lawsuits against more than 600 hotels for violating the ADA’s “Reservation Rule,” often by their own admission. This rule requires hotel websites to “identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs…in the same manner as individuals who do not need accessible rooms.”
In plain language, hotels must provide enough information so guests with disabilities don’t need to jump through more hoops than guests without disabilities just to book an appropriate room online.
After Laufer won in the court of appeals, Acheson Hotels brought their case to the Supreme Court. Although Acheson does not dispute that it violated the ADA, the company argues that because Laufer’s motive in visiting their reservation website was to enforce the law, not to book a room, she should not be permitted to sue. Their strategy — to shift the focus from their own illegal, discriminatory practice to who has the legal right, or standing, to force them to comply with the law — is not new. Nor is their attempt to discredit Laufer by labeling her a “serial litigant.”
It is a particularly cruel twist to place the burden of enforcing the law onto the group it is designed to protect, and then to vilify anyone who makes the effort to carry it out. Businesses have been deploying these kinds of tactics since before the ADA existed. The only thing noteworthy now is that the Supreme Court would consider rewarding them.
ADA lawsuits are only a symptom. Discrimination, inaccessibility, and exclusion are the problem. If a city health department shuts down 600 restaurants for flouting food-safety laws, it doesn’t matter whether 600 inspectors visited one restaurant each or one intrepid inspector visited all 600. The best way to reduce health code violations is not to reduce inspections, but to increase compliance. The same is true for accessibility.
Serving as an ADA canary in the coal mine is neither fun nor lucrative. Lawsuits demand a lot of time, energy and resources — three things people with disabilities as a class don’t typically have in abundance.
There is no right to monetary damages under the ADA — the best you can hope for is that the business will fix the violation and cover your attorney’s fees, rarely in full and sometimes not at all. That is why, when an inaccessible business presents the option to file a multi-year lawsuit or go somewhere else, most people choose the latter.
After a lifetime of going out of my way to avoid inaccessibility, I served as a tester myself a few years ago in an ADA suit concerning the lack of van-accessible parking spots in my city. Before then, I had written many letters to businesses and initiated many discussions, but experience had proven that when a decades-old federal civil rights law isn’t enough to convince someone to do the right thing, it is unlikely that a polite phone call will suffice.
This system can be frustrating. A multi-year legal battle isn’t much help when you discover you can’t use the hotel room your family just checked into because the bathroom doorway is narrower than your wheelchair. But a tester’s legal action today can make a hotel better for future customers. In the aggregate, a well-enforced ADA is an effective tool in pushing us toward a more fair and accessible society.
If it were to take away testers’ ability to sue without creating another realistic means for enforcement, the Supreme Court would undercut the ADA’s very core.
Matthew Clark, currently in Seattle, has been a disability rights activist ever since he successfully petitioned the Mechanicsburg Borough Council to install six curb cuts so that he could push himself to kindergarten — along with some help from his parents, Nancy and Roger.