Civil Rights Section Newsletter

The Sandoval Decision and Its Implications for Future Civil Rights Enforcement

ADA Enforcement Actions: Disability Access Litigation and Statutory Attorney Fees for Enforcing the Americans with Disabilities Act of 1990

The Sandoval Decision and Its Implications for Future Civil Rights Enforcement

Adele P. Kimmel and Rebecca Epstein

In a narrow 5-to-4 decision issued on April 24, 2001, the United States Supreme Court significantly curtailed the scope of one of our nation's most important civil rights laws and eliminated a long-standing weapon for battling discrimination. Section 601 of Title VI of the Civil Rights Act of 1964 prohibits federally funded programs and activities from discriminating on the basis of race, color, or national origin.1 Although federal agencies adopted regulations under Section 602 of the Act2 that prohibit disparate impact discrimination, the Court held in Alexander v. Sandoval that private parties may not sue to enforce those regulations.3 As a result, private suits under Title VI and its implementing regulations can now be brought only for intentional discrimination. If plaintiffs cannot prove intentional discrimination, they cannot sue under Title VI or its regulations, even if they can prove that the challenged action has a discriminatory impact for which no justification can be shown.

The Supreme Court's decision in Sandoval, abruptly reversed nearly three decades of precedent, including the unanimous views of all nine federal appeals courts to address the issue. The federal courts had long read Title VI and its regulations to imply a private right of action for both intentional and disparate impact discrimination. The ability to sue for "disparate impact" discrimination is important because it reaches a broad range of conduct. Plaintiffs do not need to show intentional mistreatment; they need only show that minorities are disproportionately injured by a policy or practice and that such disparate effects cannot be justified. To retain this valuable legal tool against discrimination, Trial Lawyers for Public Justice (TLPJ) joined a coalition of public interest groups in an amicus brief in Sandoval urging the Supreme Court to preserve private suits under Title VI's disparate impact regulations. The Court, however, eliminated them.

The implications of the Sandoval decision are significant for a wide range of civil rights cases being litigated throughout the country, including "environmental justice" cases that challenge the placement of waste treatment plants and similar facilities in predominantly minority neighborhoods. This article reviews those implications, as well as possible responses to the Court's decision. Before doing so, we want to urge anyone facing an attack based on Sandoval or trying to overcome its impact to contact TLPJ for assistance. We are briefing these issues and are eager to help.

The Sandoval Decision

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Sandoval was a class action lawsuit contending that the State of Alabama violated Title VI's disparate impact regulations4 by requiring applicants for a driver's license to take the written examination in English. Specifically, the suit alleged that Alabama's policy unjustifiably excluded non-English speakers from receiving a driver's license, discriminating against them based on their national origin. Prior to adopting an English-only amendment to the state constitution in 1990, Alabama had administered the test in fourteen languages. Alabama is one of twenty-four states that have enacted laws designating English as the official state language. But even those statesindeed all states except Alabamaadminister driver's license exams in multiple languages.

After a bench trial, the U.S. District Court for the Middle District of Alabama ruled in the plaintiffs' favor, enjoining the English-only policy and ordering the Alabama Department of Public Safety to accommodate non-English speakers.5 The U.S. Court of Appeals for the Eleventh Circuit affirmed, agreeing that there is an implied private right of action to enforce Title VI's disparate impact regulations.6

Nevertheless, in an opinion authored by Justice Scalia, the Supreme Court ruled that private lawsuits alleging disparate impact discrimination under the regulations are not authorized under Title VI. According to the Court, the ability of plaintiffs to enforce Title VI and its regulations extends no further than the scope of the statute's prohibitions.7 Title VI itself has been interpreted to prohibit only intentional discrimination.8 Because the regulations that prohibit disparate impact discrimination extend beyond the statute's prohibition against intentional discrimination, plaintiffs cannot directly enforce the regulations without a congressional mandate to do so.9

"Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress," Justice Scalia wrote.10 To determine Congress's intent, the Court examined only the text and structure of Title VI, refusing to consider other indicia of intent, such as the expectations that the enacting Congress had formed about implied private rights of action in light of then-contemporary legal decisions. The Court then concluded that Congress had not intended to create a private right of action under Title VI to enforce the discriminatory impact regulations.11

In a dissenting opinion joined by Justices Souter, Ginsburg and Breyer, Justice Stevens stated that "it makes no sense, to differentiate for purposes of private Title VI lawsuits between intentional discrimination and discriminatory impact."12 "There is but one private action to enforce Title VI, and we already know that such an action exists," he wrote.13 Justice Stevens called the majority's decision "unfounded in our precedent and hostile to decades of settled expectations,"14 and further criticized the majority for reaching out to take the case in the first place, in the absence of any conflict among the lower federal courts on the issue.

15 Future Civil Rights Enforcement

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The implications of the Sandoval decision for future civil rights enforcement are serious and far-reaching, but it is also important to understand both what actions are not affected by the decision and what options remain for enforcing Title VI's disparate impact regulations.

First, the Court's ruling in Sandoval does not prevent federal agencies from bringing their own enforcement actions, which may include cutting off federal grants to programs that employ policies or practices that have an unjustified disparate impact on minorities. As a practical matter, however, this fact offers little solace to victims of discrimination because federal resources for enforcing Title VI and its regulations are limited.16 Indeed, during the Clinton administration, the United States filed a brief in Sandoval stating that "private enforcement provides a necessary supplement to government enforcement" of Title VI and its implementing regulations.17

Second, the Sandoval ruling will not limit cases in which a discriminatory intent can be alleged and shown. For example, there has been some speculation that the Sandoval decision will have a negative impact on the enforcement of Title IX of the Education Amendments of 1972.18 Title IX was modeled on Title VI and prohibits sex discrimination in education programs that receive federal funds. TLPJ has successfully brought several suits under Title IX to obtain equal opportunities for women in athletics. Sandoval will not affect these kinds of cases because the Title IX athletics cases " like most Title IX suits, including those alleging sexual harassmentinvolve intentional discrimination. In other words, they involve conduct that is explicitly based on gender. The Supreme Court has long recognized a private right of action for intentional discrimination under Title IX,19 and the Sandoval majority confirmed this interpretation of Title IX.20 Unlike most Title IX cases, Title VI cases usually involve allegations of discriminatory impact. Suits for intentional discrimination on the basis of race or ethnicity are rare these days, in large part because few federally funded programs are overtly discriminatory and, as a result, intentional race and national origin discrimination have become increasingly difficult to prove.

Although the Sandoval decision has extinguished the right of private parties to sue for disparate impact discrimination under Title VI regulations, there are two principal alternative theories of recovery that plaintiffs should consider: (1) filing suit under 42 U.S.C. 1983 to enforce Title VI's disparate impact regulations and (2) filing suit in state courts alleging violations of state anti-discrimination laws (which will, of course, differ in each state).

Section 1983 Claims

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The Sandoval decision clearly bars disparate impact suits under Title VI regulations against private organizations that receive federal funds, including, for example, virtually all private colleges and universities. The opinion, however, leaves open the question whether Title VI's disparate impact regulations may be enforced against public recipients of federal funds under 42 U.S.C. 1983. In his dissenting opinion, Justice Stevens stated that the plaintiffs in Sandoval might be able to pursue their case under 1983,21 a civil rights statute that permits suits against any person acting under color of state law who violates "rights, privileges, or immunities secured by the Constitution and laws" of the United States.22 In cases involving disparate impact discrimination by "state actors," plaintiffs should therefore consider filing suit under 1983.

Section 1983 suits to enforce the Title VI regulations are likely to fare better in some federal courts of appeals than others, as the circuits are split on whether federal regulations are "laws" of the United States within the meaning of 1983. For example, the Sixth Circuit has expressly held that regulations are independently enforceable "laws" within the meaning of 1983.23 Other circuitsincluding the Second, and Ninthappear to agree with the Sixth Circuit.24 In contrast, the Fourth and Eleventh Circuits have ruled that regulations may not form an independent basis for 1983 actions.25 The Supreme Court, in Maine v. Thiboutot, has held that the term "laws" in 1983 includes federal statutes, but it has never squarely addressed the issue of whether the term also includes federal regulations.26 The federal appeals courts that have interpreted "laws" to include regulations have, however, relied on language in a 1987 Supreme Court decisionWright v. City of Roanoke Redevelopment & Housing Authorityto support their position.27

Apart from the question of whether regulations are "laws" for 1983 purposes, plaintiffs would also have to prove that Title VI's disparate impact regulations create enforceable "rights, privileges, or immunities" within the meaning of 1983. Substantial precedent supports the argument that the regulations meet the "enforceable rights" test, but defendants are likely to argue that Congress has impliedly foreclosed a 1983 remedy for enforcing the Title VI regulations by creating a comprehensive enforcement scheme under Title VI itself. Circuits are split on the issue of whether Title VI's enforcement scheme is sufficiently comprehensive to preclude a 1983 claim. For example, the Third Circuit has ruled that Title VI's enforcement scheme does not foreclose a 1983 remedy for violations of the disparate impact regulations.28 The Seventh Circuit, however, has reached the opposite conclusion.29

Furthermore, 1983 suits may be brought for injunctive relief only against state officials; states, their departments and agencies, and state officials sued in their official capacity for damages are not considered "persons" within the meaning of 1983. State officials cannot defend against 1983 claims by arguing that they are immune from suit under the U.S. Constitution's Eleventh Amendment. Eleventh Amendment sovereign immunity generally does not apply to suits seeking prospective injunctive relief against state officials, under the Ex parte Young doctrine articulated by the Supreme Court.30

Since the Court's decision in Sandoval, there have been three important decisions addressing the availability of 1983 suits to enforce Title VI's disparate impact regulations. On December 15, 2001, the Third Circuit reversed the U.S. District Court for the District of New Jersey in South Camden Citizens in Action v. New Jersey Department of Environmental Protection and held in a 2-1 decision that disparate impact regulations promulgated by the U.S. Environmental Protection Agency under Title VI do not create enforceable rights under 1983 because the alleged federal rights did not appear explicitly in Title VI itself.31 Following the guidance provided in Justice Steven's Sandoval dissent, the district court had ruled that Title VI's disparate impact regulations.32 Prior to Sandoval, the district court had ruled that New Jersey officials violated the Title VI regulations by granting Clean Air Act permits for a cement plant in a low-income, minority neighborhood. Residents of the predominantly African American and Hispanic neigborhood had alleged that the state's permitting policy would adversely affect them, pointing to an already disproportionatly high rate of asthma and other respiratory aliments.

On August 3, 2001, the U.S. District Court for the Eastern District of Michigan held in Lucero v. Detroit Public Schools that Title VI's implementing regulations, including those that prohibit disparate impact discrimination, create federal rights that are enforceable under 42 U.S.C. 1983.33 In reaching this conclusion, the district court expressly rejected the argument that the Supreme Court's decision in Sandoval precludes a private right of action under 1983 to enforce Title VI's disparate impact regulations.34

On November 19, 2001 the U.S. District Court for the Eastern District of Michigan held in White v. Engler the minority students could pursue their claims that Michigan's college scholarship program has an unjustified disparate impact on them in violation of 1983.35 In upholding the plaintiffs' right to enforce the Title VI regulations through 1983, the court rejected the defendents arguments that the plaintiffs' claims were foreclosed by Sandoval.

State Law Claims

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In the wake of Sandoval, plaintiffs should also consider asserting their disparate impact claims under state public accommodations or other anti-discrimination statutes. There are, of course, certain limitations imposed by resorting to state law. First, there is no uniformity in state anti-discrimination statutes, with some states offering much broader civil rights protection than others. Second, plaintiffs would have to assert such state law claims in state courts because the Eleventh Amendment generally prohibits federal courts from ordering state officials to conform their conduct to state law. Finally, as with the variance in state anti-discrimination statutes, some state courts are more friendly to civil rights claims than others. For political reasons, moreover, some state court judges may be reluctant to issue a ruling against state officials. All these factors should be carefully weighed in deciding whether to pursue a disparate impact claim under state law.

Conclusion

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Section 1983 claims, at least in some jurisdictions, appear to be the only remaining option for private suits to enforce Title VI's disparate impact regulations. Such lawsuits would be limited to discriminatory conduct by state officials and would not reach private recipients of federal fundsbut at least there may still be recourse against state-sanctioned conduct that has an unjustified discriminatory impact on minorities.

Congress is, of course, free to overturn Sandovalas it has done with several other Supreme Court decisions that narrowed the scope of civil rights laws " because the decision involved statutory rather than constitutional interpretation. But this seems unlikely to occur any time in the near future, given the current political climate. That being so, lawyers representing victims of disparate impact discrimination should carefully investigate potential causes of action under 1983, research all potentially applicable state laws, and, if further help is needed, consider contacting Trial Lawyers for Public Justice.34

Adele P. Kimmel and Rebecca Epstein are staff attorneys at Trial Lawyers for Public Justice, a national public interest law firm with offices in Washington, DC and Oakland, California.

Endnotes

1. 42 U.S.C. 2000d
2. 42 U.S.C. 2000d-1.
3. 21 S. Ct. 1511, 1523 (2001).
4 The regulations at issue in Sandoval were promulgated by the Department of Justice. Those regulations forbid federal fund recipients from utilizing criteria or methods of administration that have the effect of subjecting individuals to discrimination based on their race, color, or national origin. 28 C.F.R. 42.104(b)(2) (1999).
5. Sandoval v. Hagan, 7 F. Supp. 2d 1234, 1315-16 (M.D. Ala. 1998).
6. Sandoval v. Hagan, 197 F.3d 484, 511 (11th Cir. 1999).
7. Alexander v. Sandoval, 121 S. Ct. at 1518.
8. Id. at 1516.
9. Id. at 1519-20.
10. 121 S. Ct. at 1519.
11. Id. at 1521.
12. Id. at 1533.
13. Id.
14. Id. at 1524.
15. Id. at 1536
16. See U.S. Respondent's Brief, 2000 WL 1846063, at*31 (Dec. 13, 2000), Alexander v. Sandoval, 121 S. Ct. 1511 (2001) (No. 99-1908).
17. Id.
18. 20 U.S.C. 1681 et seq.
19. See Cannon v. University of Chicago, 441 U.S. 677 (1979).
20. Sandoval, 121 S. Ct. 1517.
21. 121 S. Ct. at 1527.
22. 42 U.S.C. 1983.
23. Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir. 1994).
24. See Buckley v. City of Redding, 66 F.3d 188 (9th Cir. 1995) (framing issue underlying statute conferred right enforceable under 1983, but applying analysis to regulations, and finding regulations imposed enforceable, binding obligation on defendant); King v. Town of Hempstead, 161 F3.d 112 (2d Cir. 1998) (assuming regulations can provide independent basis for a 1983 suit, but without deciding issue). The Third Circuit upheld a 1983 claim to enforce Title VI's disparate impact regulations in Powell v. Ridge, 189 F.3d 387, 399-403 (3d Cir.), cert denied, 528 U.S. 1046 (1999), but this ruling was recently called into question by the Third Circuit's 2-1 ruling in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 274 F3.d 771, 784-85 & n.8 (3d Cir. 2001).
25. Harris v. James, 127 F.3d 993, 1007-12 (11th Cir. 1997); Smith v. Kirk, 821 F.2d 980, 984 (4th Cir. 1987)
26. 448 U.S. 1, 6-8 (1980).
27. 479 U.S. 418, 420 n.3, 431 (1987).
28. Powell, 189 F.3d at 401-03. But see South Camden, 274 F.3d at 784-85 & n.8 (where court cautioned against overreading Powell, particularly in light of Supremes Courts ruling in Sandoval).
29. Alexander v. Chicago Park D., 773 F.2d 850, 856 (7th Cir. 1985).
30. 209 U.S. 123 (1908); Edelman v. Jordan, 415 U.S. 651, 664 (1974).
31. 274 F3d at 781.
32. 145 F.Supp.2d 505, 517 (D.N.J. 2001).
33. Lucero v. Detroit Public Schools,160 F.Supp2.d 767, 784 (E.D. Mich. 2001)
34. Id. at 23.
35. The decision in White v. Engler, Case No. 00-CV-72882-DT (E.D. Mich. Nov. 19, 2001) has not yet been reported.
36. Trial Lawyers for Public Justice at 1717 Massachusetts Avenue, NW, Suite 800, Washington, DC 20036, Tel. 202-797-8600, Fax 202-232-7203, E-mail: tlpj@tlpj.org Web: http://www.tlpj.org/

ADA Enforcement Actions: Disability Access Litigation and Statutory Attorney Fees for Enforcing the Americans with Disabilities Act of 1990

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Paul L. Rein, Oakland, California The ADA Provides an Opportunity for Public Service and Attorney Fees

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We would all like to use our law practices to improve the social welfare and public interest. However, most of us also need to earn money to support our families and our law practices. ADA enforcement lawsuits used to gain public access for physically disabled persons at major public accommodations throughout the United States are a great way for trial lawyers to carry out public interest improvements while being compensated by statutory attorneys fees. These successful attorneys will be collecting statutory legal fees from major businesses caught illegally maintaining barriers which deny "full and equal" access to public accommodations to disabled persons. A great many barriers remain to be removed.

The Americans with Disabilities Act of 1990 (42 USC 12101) defines "discrimination" against disabled persons to include the failure to remove architectural barriers where the removal of such barriers is "readily achievable," or is otherwise required by the building's construction date or alteration history after January 26, 1992. [ADA 303] Enforcement of ADA compliance allows persons who must use wheelchairs, walkers, or canes to enter public buildings and use public restrooms on a "full and equal" access basis, the same as everyone else. When businesses - or governmental agencies - don't comply with the law requiring accessible public facilities, private lawsuits for injunctive relief are an effective way to gain access.

As of July 26, 2001, the ADA has been in effect for eleven years; yet there are very few private practice lawyers who file ADA access lawsuits. The dearth of attorneys currently handling these cases means that this field of law is wide open for more attorneys to participate. This article is intended to encourage more attorneys to handle ADA civil rights lawsuits. ADA Title II and Title III Allow Actions Against Governmental and Commercial Facilities

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Title III of the ADA requires access to privately owned public facilities, including restaurants, theaters, auditoriums, hotels, motels, shopping malls and retail stores, hospitals, doctors' offices, office buildings and banks, amusement parks, racetracks, and even cruise ships which contain public facilities. (Stevens v. Premier Cruises, Inc. (11th Cir. 2000) 215 F.3d 1237) Title II of the ADA, applicable to governmental services, requires that courthouses, city halls, and government buildings operated by states, cities or counties, provide proper physical access, and program access. This requires, for example, that state colleges be properly accessible, both as to programs, class buildings, libraries, cafeterias, etc. The ADA is applicable without regard to the "intent" of the private or governmental entity. (Crowder v. Kitigawa, Chairman, Hawaiian Bd. of Control (9th Cir. 1996) 81 F.3d 1480) ADA Title II and Title III both afford injunctive relief and prevailing party attorney fees as remedies. Analogous State Laws Allow Damages and Additional Remedies

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Many states, including California, have their own state disability access laws and civil rights laws which provide damage remedies, in addition to state law injunction and attorney fees remedies. Since 1968 California's Legislature has passed a full slate of disabled access laws, requiring government owned public buildings to be accessible when constructed or when "alterations" are made. Similar requirements were extended to all "privately" owned public accommodations since July 1, 1970. (Govt. Code 4450ff; Health and Safety Code 19955ff.) As a California lawyer, I've been practicing disabled access law under California law for more than twenty-five (25) years and thus have had a "head start" in preparing to enforce the Americans With Disabilities Act of 1990. (Most of the examples cited herein have been encountered in my own practice.) California precedents may set useful examples of the availability of state law remedies to supplement those of the ADA. If you have any interest in this area of law, promptly check your own state's disability rights laws.

California case law holds that statutory damages (with a minimum of $1,000 per violation) and reasonable attorney fees, necessarily incurred by a disabled plaintiff, must be awarded for statutory violations without regard to a defendant's "intent." Private enforcement actions under civil rights laws can be used to enforce existing building code disabled access standards (James Donald v. Caf Royale (1990) 218 Cal.App.3d 168, 266 Cal.Rptr. 804; James Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 260 Cal.Rptr. 49). Substantial state law damages may be awarded for violation of the requirement for "full and equal" access, in addition to substantial attorney fees (cf. Hankins v. El Torito Restaurants, Inc., et al. (1998) 63 Cal.App.4th 510, 74 Cal.Rptr. 2d 684, affirming $80,000 damages and $403,000 attorney fees.) Private ADA Enforcement Actions are Necessitated by the Lack of "Voluntary" Compliance

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The Americans with Disabilities Act was passed by Congress effective July 26, 1990. As to privately owned buildings, an eighteen (18) month "window" was provided, with a "compliance" deadline of January 26, 1992. During this compliance period, businesses had an obligation to remove all barriers to accessible entrances, paths of travel, restroom facilities and parking when such removal was "readily achievable." [ADA 301(9) and 302(b)(2)(A)(iv).] Additionally, all areas of new construction or alteration in public accommodations after 1992 were required to be built accessible (ADA 303) (as already required under California law since 1970).

"Readily achievable" is statutorily defined as "easily accomplishable and able to be carried out without much difficulty or expense." Under Botosan v. McNally Realty, et al. (9th Cir. 2000) 216 F.3d 827, the "readily achievable" standard requires a comparison of the estimated cost of providing access as against a number of statutory factors, including a comparison to the "overall financial resources" of each defendant. Proper use of these standards, and the necessary discovery areas opened by these issues, can be a strong incentive for the non-compliant defendant business to provide the required access.

The ADA envisioned that businesses would voluntarily "self-enforce" and "self-comply" during the eighteen (18) month compliance "window" and thereafter. Guess what? With little governmental enforcement, many businesses did not "self-enforce," and instead continued to maintain architectural barriers which blocked access for disabled persons - a denial of the "full and equal access" required by law. (302 ADA, 54.1 California Civil Code.) Maintaining illegal architectural barriers is a form of discrimination against disabled persons which is a per se violation of their civil rights regardless of the "intentions" of the defendants. (Donald v. Caf Royale, supra; Crowder v. Kitigawa, Chairman Hawaiian Bd. of Control, supra.) Against this background, action by a private lawsuit is often the only remedy which can end the barrier discrimination. The California Supreme Court has recognized the destructive effect of discrimination upon disabled persons:

Disability discrimination is indistinguishable in many ways from race and sex discrimination. Specifically, it can "attack the individual's sense of self-worth in much the same fashion as race or sex discrimination." City of Moorpark v. Sup. Ct. (1998) 18 Cal. 4th 1143, 1160 Once a building department has allowed state law violations without proper administrative enforcement, or when businesses choose not to voluntarily remove "readily achievable" barriers, a building will remain forever unusable for disabled persons unless a private enforcement lawsuit is used to compel access changes. (In most situations requiring private lawsuits to enforce access under state law, a building department has previously failed to enforce existing building code access requirements.)

Enforcement By the U.S. Department of Justice is Insufficient By Itself

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Title II of the ADA requires building and "program" accessibility in government buildings, whereas Title III covers privately owned and operated public accommodations. While enforcement from the U.S. Attorney General's office is possible, the degree of enforcement of Civil Rights under the new Attorney General is "unknown to this writer at this time." However, the bulk of Title II and Title III enforcement over the last ten years, has been and must continue to be by private lawsuits. For example, in California, universities and state college campuses, county courthouses, Veterans Administration facilities and joint private-governmental operators - such as the Sacramento "Waterworld" amusement park and "BART" (Bay Area Rapid Transit transportation system) - have all been successfully sued under Title II to obtain more accessible governmental facilities and services. Under ADA Title III, even major amusement parks and major year round recreational facilities have been required to provide access throughout their buildings, grounds, and paths of travel. (Cf. Atwood v. Six Flags Marineworld U.S.D.C. (E.D.Cal.) Case No. CIVS-99-1134 LKK/JFM; Leiken v. Squaw Valley Ski Corp., Alex Cushing U.S.D.C. (E.D.Cal.) Case No. CIVS-93-505 LKK/GGH) Other actions have gained access to major live theaters and movie theaters, hotels, restaurants, office buildings, hospitals, medical centers, and major retail facilities such as Penney's, Safeway and Rite Aid.

While ADA Title III is primarily enforceable by private lawsuits, the United States Department of Justice did join with disabled plaintiffs in some (mainly class) actions during the 1990's. In the year 2000 the Department of Justice filed an amicus curiae brief supporting a successful (California) private lawsuit which held the world's largest cruise ship line, Carnival Cruise Lines, responsible for ADA compliance. (Bernard Walker & Christina Adams v. Carnival Cruise Lines (N.D.Cal.) U.S District Court 98-2926 TEH, discussed infra.) The Carnival Cruise Lines Case Opinions Set Useful Precedents and Recognized ADA Plaintiffs as Important Private Attorneys General

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In Walker and Adams v. Carnival Cruise Lines, et al. (Order of November 22, 2000) former Northern District of California Chief Judge Thelton Henderson held that the ADA applied to the public accommodation portions of even "foreign flag" cruise ships when they operate, in part, in American waters (following Stevens v. Premier Cruise Lines, supra). Earlier published opinions in that case set important and useful precedents: (1) The ADA may be used to require travel agent services to reasonably accommodate the needs of disabled travelers. (Walker and Adams v. Carnival Cruise Lines, et al. (1999) 63 F.Supp.2d 1083) (2) Although that opinion originally enforced Carnival's "forum selection" clause (requiring all persons to bring any action against Carnival in Florida under the general rule established in Carnival Cruise Lines, Inc. V. Shute (1991) 499 U.S. 585), on rehearing the court reversed its earlier order and found that the ADA would be violated if a disabled person physically unable to travel to Florida was forced to bring his or her lawsuit only in Florida as a condition of enforcing their statutory rights. (Walker and Adams v. Carnival Cruise Lines, et al. (2000) 107 F.Supp.2d 1135, 1143).

In Walker, supra, Judge Henderson recognized the importance of ADA plaintiffs as "private attorneys general" enforcing a Congressional "policy of the highest priority," in holding that the ADA and other relevant civil rights lawsuits' considerations made it improper to enforce Carnival's forum selection clause against such physically disabled persons who could not travel to Florida, finding such "strict interpretation and blind enforcement of the forum selection clause here at issue would do nothing less than revictimize these plaintiffs." (Id. at 1146) The court distinguished the holding of the U.S. Supreme Court in Carnival v. Shute, supra, which upheld the general enforce ability of "forum selection" provisions in small print on Carnival's multipage tickets, noting that the Supreme Court had conditioned that the claim would be enforced unless application would be "fundamentally unfair." In his ruling Judge Henderson expounded upon the important public policies at stake:

This Court is persuaded that enforcing defendants' forum selection clause, under the circumstances presented here, would contravene the strong national policy of eradicating disability discrimination and promoting full and equal access to the legal system for civil rights plaintiffs. There can be no question that the Americans With Disabilities Act, passed in 1990, established as law the nation's interest in eradicating the bigotry and barriers faced by individuals with disabilities. 42 U.S.C. 12102 et. seq. (hereafter "ADA"). In fact, the ADA states its first goal as being "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." See 42 U.S.C. 12101(b)(1)(1990). The ADA creates the possibility that successful plaintiffs may establish permanent changes in the design and physical configuration of structures to better accommodate the disabled. 42 U.S.C. 12101(a)(5). The benefits of such changes clearly redound not only to the plaintiffs themselves, but to similarly situated disabled persons, and the entire society at large. As a result, plaintiffs or plaintiff classes who bring suit pursuant to the ADA do so in the role of "private attorneys general" who seek to vindicate "a policy of the highest priority."

For example, successful ADA plaintiffs confer a tremendous benefit upon our society at large, in addition to the attainment of redress for their personal individual injuries; successful ADA plaintiffs, like plaintiffs under Title VII, are entitled to 42 U.S.C. section 1988's fee shifting provision. See 42 U.S.C. 1988. As the Eleventh Circuit recently has explained, [I]n Title VII cases as well as cases under the ADA, the enforcement of civil rights statutes by plaintiffs as private attorneys general is an important part of the underlying policy behind the law. Such a policy ensures an incentive for "impecunious" plaintiffs who can ill afford to litigate their claims against defendants with more resources.

Remedies Under State Law For Violation of the ADA

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FSome states have their own civil rights laws which include protections for the rights of disabled persons. Sections 54 and 54.1 California Civil Code guarantee "full and free use" of public streets, sidewalks, public buildings and medical facilities, and "full and equal access" to all accommodations, advantages and facilities of all places of public accommodation. Any violation of California's disabled access building standards, sections 19955ff Health & Safety Code, also constitutes a violation of section 54.1, guaranteeing damages under section 54.3. (Donald v. Caf Royale, supra; Donald v. Sacramento Valley Bank, supra.) Per California Civil Code sections 54(c) and 54.1(d), any violation of the ADA also constitutes a violation of these sections, with damages, attorney fees, and injunctive relief remedies per 54.3 and 55 Civil Code. Thus, although ADA Title III itself does not provide direct damages, damages may be available if state civil rights statutes adopt the ADA as a per se violation. (For authority that violation of the ADA may be a per se safety violation, as a negligence standard, see Smith v. Walmart (6th Cir. 1999) 167 F.3d 286.)

Both the ADA itself and the related state civil rights statutes have "prevailing party" attorney fees provisions. However, fees - and costs - are only for prevailing plaintiffs under ADA 505 and 36.505 following the ruling in Christiansburg Garment Co. v. Equal Employment Opportunity Comm. (1978) 434 U.S. 412, that attorney fees will not be awarded against a "good faith" civil rights plaintiff, unless the lawsuit is found to be "frivolous" or "fraudulent." A recent 9th Circuit decision extended this rule to recovery of costs in an ADA case. (Brown v. Lucky Stores, Inc., 2001 U.S. App. LEXIS 6609)

Caveat the very recent (May 29, 2001) Buckhannon v. West Virginia 532 U.S. (2001) in which the U.S. Supreme Court by a 5-4 decision rejected the "catalyst" theory previously accepted by eleven of the twelve circuits (including the 9th Circuit) and requiring a court order or court approved settlement to establish liability, even when the defendant provided the complaint's requested changes after being sued; without this, plaintiff would not be considered the prevailing party. Dissenters, in the same 5-4 alignment as in Bush v. Gore, argued this could have a discouraging effect upon civil rights enforcement actions. However, this should not effect different state law standards. (See also recent Jan. 16, 2002 9th Circuit Barrios v. California Interscholastic Federation, 2002 U.S. App. LEXIS 673, holding settle obtaining damages or injunctive relief earns statutory attorneys fees).

The ADA provides for recovery of attorney fees, litigation expenses, and costs. (Section 505 [42 USC 2205]). California awards attorney fees alternatively for recovery of any statutory damages pursuant to section 54.3 (Donald v. Caf Royale, supra) or for obtaining injunctive relief per section 55 California Civil Code and section 19953 Health and Safety Code. Attorneys throughout the United States should check their own state's civil rights laws to see (a) if there are provisions which protect disabled persons; (b) whether these state statutes incorporate a violation of the ADA as a violation of that state's civil rights laws; and (c) what remedies are available with regard to damages, injunctive relief and attorney fees.

Section 505 of the ADA gives broad recovery not only for attorney fees and costs but also for "litigation expenses." The Department of Justice has interpreted Section 36.505 of the Department of Justice regulations to specify that recovery of "litigation expenses" will include these types of expenses normally paid by a private paying client, including expert witness and expert consultant fees.

Although pursuant to federal law no "enhancement" of attorneys fees may be directly permitted. Recovery under state public interest statutes which allow enhancement for example California's Code of Civil Procedure 1021.5, the "private attorneys general" statute has been held to permit a multiplier enhancement based on contingent fee risk and other factors. This enhancement under state law standards is enforceable in federal court, (Mangold; Crommie v. California Public Utilities Comm'n et al. (9th Cir. 1995) 67 F.3d 1470; Crommie v. State of California, et al. (1994) 840 F.Supp. 719.) A unanimous decision of the California Supreme Court in Ketchum v. Moses (2001) 24 Cal.4th 1122, 104 Cal.Rptr.2d 377, recently upheld the right to seek multiplier enhancement and rejected the alleged "federal rule" to the contrary.

Venue/Jurisdiction

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ADA cases may be filed in state court or federal court, although a complaint containing an ADA cause of action filed in state court may be removed at defendant's option to federal court because the lawsuit seeks relief under a federal statute. However, even in federal court additional state law causes of action (including those allowing damages) may be included under the doctrine of "supplemental jurisdiction." (See generally 28 USC 1367(c)(3).)

Necessary Allies: Access Consultants

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Expert consultation either from licensed architects (who are required to know both State and ADA access requirements) or a growing body of trained "access consultants" who are specialists in handicapped access requirements but are not licensed architects, will be of assistance in making your way through the maze of specific building requirements. However, because these requirements are objective and specific - i.e., an "accessible" toilet must be 17" to 19" off the floor, have 48" clear space in the front, 32" clear space on one side (to allow "side transfer") and provide a 60" turning radius these are matters upon which most access consultants should agree. It simplifies settlement negotiations when both sides have retained qualified consultants, who may often agree among themselves as to the specific access additions which are legally required, depending on the construction history of the building and, under the ADA "readily achievable" standard, the necessary cost of proposed access improvements. However, in the event of disagreement, it should be the defendant's burden to prove that provision of access is "not readily achievable," per ADA 302(b)(2)(A)(iv)-(v), an affirmative defense.

Which Attorneys Are Qualified to Handle Disabled Access Cases?

Attorneys who have any experience handling standard tort cases can also handle Civil Rights disabled access cases, either under the ADA and/or under local state law, with several plaintiff advantages compared to basic (negligence) tort litigation:

• No proof of wrongful "intent" is needed for ADA liability (Crowder v. Kitigawa, Chairman, Hawaiian Bd. of Control , supra; Helen L. v. DiDario (3d Cir. 1995) 46 F.3d 325); or in California under 54.1 Civil Code (Donald v. Caf Royale, supra).

• Statutory liability for providing access, triggered by new construction or alteration, per ADA 303 (42 USC 12183), is often easy to prove by "construction and alteration," building department records.

• If defendants deny that providing access is "readily achievable," they must offer evidence of (1) the cost of providing access, for comparison against (2) the "overall financial resources" of each owner and operator, lessor or lessee. (ADA Section 301(9) (42 USC 12181); Botosan v. McNally Realty, et al., supra);

• If plaintiff is successful in achieving any access, or in obtaining state law damages, defendants must pay plaintiff's attorney fees. (ADA 505; California Civil Code 54.3; Donald v. Caf Royale, supra) Therefore, defendants usually can't simply outspend plaintiff to discourage plaintiff's attorneys from handling "small" cases. (Compare the willingness of insurance companies to outspend plaintiffs' attorneys in order to discourage lawsuits in smaller accident and tort cases, for example, to spend $15,000 in defense attorney fees rather than pay $5,000 to settle a small "rear-ender" case.)

Conclusion

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Attorneys who've handled other civil rights cases, and attorneys who can handle personal injury litigation and would like to expand their areas of practice, will enjoy handling disabled access litigation. Attorneys who inform local disability rights organizations and activists that they are willing to handle disability rights cases on a contingent statutory fee basis seeking a statutory fee to be paid only by defendants will have no difficulty finding plenty of potential clients. Other attorneys who specialize in this area of law will be glad to help you when legal issues arise.

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