MESSAGE
| DATE | 2017-03-15 |
| FROM | Andrew Beyer
|
| SUBJECT | Re: [Hangout-NYLXS] [nylug-talk] Fwd: Contact DOJ and thell them to
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I think the two separate threads of discussion, the Title II vs Title
III mixup, and my not being very clear what my objections were have
conspired to make this a bit more confusing than necessary. I'm gonna
try to rejoin the threads in one reply and shuffle stuff around to try
to be more explicit in making my point here. Apologies if any of this
seems out of context, I'm just trying to separate a few interrelated
issues that have gotten jumbled together.
>> Public institutions subject to Title II must, not necessarily private
>> ones, though.
>
>Hence, UC Berkeley. ;)
>
>Do we at least agree here?
Yes! I think we're in violent agreement there. :)
I should have been more clear initially, but I totally agree with you
on the Berkeley case. Berkeley clearly falls under Title II, Title II
is pretty unambiguous, and is applicable. I don't even think Berkeley
ever really believed it didn't apply, evidenced by the fact that they
had already given info and direction to instructors about
accessibility that just hadn't gotten the desired results. I think the
specific ruling in that case is fair, and don't take issue with it.
I'll even go so far as to say I suspect we agree almost 100% *when it
comes to public entities which fall under Title II*.
My objections center around private entities and Title III, and
specifically the fact that the way it stands now, I firmly believe
Title III can only be reasonably read as applying only to the physical
presences of private entities. I'm not sure *why* it was written that
way, I'm not saying that I think it *should* be that way, but I do
think it *is* that way. And I strongly object, even when the goal is a
noble one, to attempts to reinterpret a law that isn't working by fiat
rather than amending or extending it legislatively.
>> I'd argue that fundamentally it's because the legislature has failed
>> to write or update the law.
>
>Huh? Explain the civics to me on that one.
The courts and the DOJ are trying to extend the private entity rules
of Title III to websites, and have been pretty vocal in saying so. I
don't think that law exists, though, and suspect that the lawyering
around it is just going to continue to get worse until it does and/or
the supreme court rules on it.
>> see Access Now. v. Southwest Airlines
>> [http://pdfserver.amlaw.com/nlj/docket/110402access-ruling.pdf]:
>>> In interpreting the plain and unambiguous language of the ADA, and its applicable federal regulations, the Eleventh Circuit has recognized Congress' clear intent that Title III of the ADA governs solely access to physical,
>>> concrete places of public accommodation. Rendon, 294 F.3d at 1283-84; Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 (11th Cir. 2000) (noting that "because Congress has provided such a comprehensive
>>> definition of 'public accommodation,' we think that the intent of Congress is clear enough"). Where Congress has created specifically enumerated rights and expressed the intent of setting forth "clear, strong, consistent, enforceable
>>> standards," courts must follow the law as written and wait for Congress to adopt or revise legislatively-defined standards that apply to those rights. Here, to fall within the scope of the ADA as presently drafted,
>>> a public accommodation [*14] must be a physical, concrete structure. To expand the ADA to cover "virtual" spaces would be to create new rights without well-defined standards.
>
>So, someone with hearing disabilities shouldn't be able to get access
>to learning materials over the web, from a public university? That's
>a 'virtual space,' and shouldn't be applied?
1. I'm not talking about what should or shouldn't be, I'm talking
about the law as it stands. and 2. This is specifically in reference
to the "place of public accommodation" language of Title III, so not
relevant to a public university, we're talking private entities.
>Again, _how_ is this different than prior applications of Title II on
>VHS and DVD?
Title III *doesn't* have prior applications to VHS and DVD, as far as
I know, and if it did I would have the exact same objections to them,
as I don't think the law would support it. I feel like the lack of
applicable language for media that did exist at the time is perhaps
the most compelling argument that the drafters were very intentional
in *not* applying it that way. It's fair to argue that the internet
didn't exist as we know it today in 1990 so lawmakers couldn't have
considered it...but why didn't they consider the things that *did*
exist then, if they mean for it to apply to media?
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