The Landmark Civil Rights Law in the Supreme Court’s Crosshairs Might Get a Reprieve
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Over the years, Congress has passed an array of sweeping statutes intended to protect some of the most vulnerable Americans from rank bigotry and invidious discrimination. Unfortunately, Congress has done comparatively little to enforce these laws and leans heavily on the volunteer efforts of victims of illegal discrimination, known as “testers,” to fulfill the lofty promises these statutes make. There is nothing more American than the government outsourcing the task of enforcing civil rights law to people who are supposed to be protected by it.
On Wednesday, one of these testers faced the scrutiny of the Supreme Court in a case that will have far-reaching consequences for the enforcement of the Americans With Disabilities Act. At stake in Acheson Hotels v. Laufer is the ability of disabled Americans to travel the country as freely as nondisabled Americans. But it’s also about who bears the burden of fulfilling the promises of civil rights laws—and the conservative legal movement’s efforts to hollow out enforcement of those laws until no one is left to do the work.
Deborah Laufer was diagnosed with multiple sclerosis at age 39; today she gets around using a walker or a wheelchair. After her diagnosis, she quickly found that it was “nearly impossible” for her to travel overnight, since hotels rarely provided accurate accessibility information, if they did so at all. Occasionally, after arriving at her hotel only to find that it couldn’t accommodate her, she’d end up sleeping in her car.
In theory, the ADA, which Congress passed in 1990, has a fix for this problem. A regulation known as the Reservation Rule requires hotels to post accessibility information on their websites, thus allowing prospective customers to determine whether or not the hotels meet their needs. The government can enforce the rule, but testers can too, by filing lawsuits; although the ADA doesn’t generally allow them to recover money damages, they can get their attorneys fees reimbursed. Even more importantly, they can get an injunction requiring the hotel to comply with the law, thereby making this country’s massive hospitality industry a tiny bit more accessible, one property at a time.
Several years ago, Laufer decided to become a tester herself, in light of the hotel industry’s “widespread failure” to follow the Reservation Rule. She began perusing hotel websites and suing those that weren’t following the law, even if she didn’t intend to book a room there. The fruits of her labor are evidence that ADA enforcement has a long way to go, to put it mildly: Since 2018, she has sued some 600 hotels, and “countless” hotels, her lawyers say, have updated their websites in response. One of the groups Laufer sued is Acheson Hotels, which operated a cottage-and-inn business in Maine. Acheson fought back, arguing that Laufer doesn’t have standing to sue—since she didn’t actually intend to stay there, she hasn’t suffered an injury a court can address.
Lawyers for Acheson paint an alarming portrait of what people like Laufer are doing to the bottom lines of hotels everywhere. At oral argument, they emphasized the “hundreds and hundreds” of lawsuits Laufer has filed, and in amicus briefs, business interests bemoan a “staggering” volume and “unrelenting” wave of frivolous lawsuits that clog federal dockets. In its briefing, Acheson frames the Reservation Rule as a classic burdensome Big Government regulation that hotels “may have never heard of.” As my Balls and Strikes colleague Madiba Dennie points out, the idea that a business, not a potential customer, is responsible for 1) knowing what the law is and 2) taking a few hours to comply with it seems not to have occurred to them.
These characterizations about the proliferation of ADA litigation are, let’s say, melodramatic; these cases have averaged 2.2 percent of federal civil filings since 2008, per a brief filed by the Disability Rights Education and Defense Fund. But dire warnings about opportunistic plaintiffs and greedy lawyers is a time-honored strategy for courting judicial sympathy, particularly when a conservative supermajority of the relevant court is already predisposed to it.
What Acheson’s arguments gloss over is that if the court were to close the courtroom to testers, no one will fill the ensuing enforcement vacuum. Given the volume of complaints the federal government receives, resolving them can take years, and the government acknowledges that testers are an “essential” part of civil rights enforcement in light of its “limited enforcement resources.” By trying to make life harder for testers like Laufer, the hotel industry doesn’t actually want to solve the problem of noncompliance with anti-discrimination law. It just wants people to stop bothering the industry about it.
At oral argument, however, the court seemed less concerned with the substantive issue than with deciding whether Acheson Hotels is the right vehicle to resolve it. That’s because earlier this year, Laufer asked the court to moot the case after learning about a raft of misconduct allegations against her former lawyers. Some of the misconduct was related to Laufer’s other ADA cases but not to Acheson Hotels; some of the misconduct, incredibly, was unrelated to Laufer or the ADA. Laufer nonetheless moved to dismiss her then-pending lawsuits, including this one, fearful that the revelations would “distract from the merits of her ADA claims and everything she has sought to achieve.” On top of all this, Acheson has sold the offending hotel, and its website now complies with the Reservation Rule. There is, in other words, not a ton to decide here.
Acheson, eager for its get-out-of-compliance-free card, is urging the justices to forge ahead. But on Wednesday, they seemed leery of doing so; the very first question for the hotel’s counsel came from Justice Clarence Thomas, who suggested that the case “seems as though it’s finished,” and that it would be “easier” for the court to punt. Justice Sonia Sotomayor quickly followed, asking why a substantive decision would not be a mere “advisory opinion.” Justice Elena Kagan referred to the case as “dead as a doornail several times over” and “dead, dead, dead, in all the ways that something can be dead”; deciding it, she said, “just doesn’t seem like something that a court should be anxious to do.”
Even if the court grants Laufer’s request in this case, at some point it will have to decide what discrimination looks like in the age of the internet, when “accessing” businesses can be done from the comfort of one’s own home. As Sotomayor pointed out, in previous tester cases involving fair housing laws, Black testers would walk up to an apartment building’s front door and ask about vacancies. Today, when a reservation website is functionally “the door to the hotel,” what counts as walking up to it? The justices pondered lots of possibilities: When a person thinks about taking a trip, or commits to doing it, or browses a hotel’s website, or takes out their credit card to book, for example. And the more hoops the court forces people to jump through before they can enforce their rights, the more often those rights will go unenforced—which is, of course, exactly what Acheson and its allies want.
If ADA testing indeed survives, Deborah Laufer won’t be a part of it; the criticism she has endured, she told the Washington Post, makes her advocacy more trouble than it’s worth. “I got into this to help people, not to become a villain,” she said. “When I get out of this, who is going to step in to make sure people have the ability to go to these hotels? Is the federal government going to step in?” The answers are probably no one and no, respectively. The question is whether or not the Supreme Court cares.
