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The Supreme Court seemed ready Wednesday to put off a decision about whether disability rights activists have legal grounds to sue hotels they have no intention of visiting, with a majority of justices suggesting it would be a waste of time to resolve a lawsuit that has been dropped.
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“The case before us is dead as a door nail,” Justice Samuel A. Alito Jr. declared.
“This is like dead, dead, dead, in all the ways something can be dead,” Justice Elena Kagan followed.
While the issue of who can sue over hotel accessibility is important, and probably will need to be decided at some point, Kagan said, “I guess it just doesn’t seem like something that a court should be anxious to do” in these circumstances.
Before the justices was the case of Deborah Laufer, a Florida woman with multiple sclerosis, who filed more than 600 lawsuits against hotels she researched online. She accused the hotels of violating the Americans With Disabilities Act by failing to include accessibility information on reservation websites.
The court is being asked to decide whether disabled people may sue hotel owners to enforce the ADA when they do not intend to stay at the properties — and, more broadly, to what extent people are directly harmed when they experience discriminatory barriers or policies online. Justice Department rules implementing the ADA in 2010 require hotels to “identify and describe accessible features” in sufficient detail so that people who rely on service dogs or wheelchairs, for instance, can assess whether a hotel meets their needs.
Laufer’s lawyers and disability rights advocates say her efforts as a tester are no different from the work of Black civil rights advocates who were allowed to sue when they showed up to inquire about renting apartments they did not intend to occupy and were turned away because of their race.
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But lawyers for the owner of the small hotel in southern Maine that Laufer sued in 2020 told the court that she was not directly harmed by the online omission of information about whether the hotel was accessible because she did not plan to travel to the property and had no personal need for the information. Backed by the U.S. Chamber of Commerce and other business organizations, the hotel owner warned that such lawsuits burden small businesses, clog the court system and undermine the government’s power to enforce the law.
Laufer’s case was complicated this summer after federal judges in Maryland issued an order suspending the law license of her former attorney in a separate case. After that disciplinary action, Laufer took the unusual step of dropping the complaint against Acheson Hotels and urging the Supreme Court to find there is no longer a pressing issue to resolve.
Julianna Acheson, the hotel owner at the time of the lawsuit, opposed the effort to drop the case, saying she wanted the justices to decide the issue of whether testers could file similar lawsuits in the future. But Acheson has since sold the hotel, and the new owners have posted the required ADA information on their website.
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For that reason, the Justice Department urged the justices on Wednesday to find that the case is moot.
This disability rights activist sued hotels more than 600 times in five years
Justices Sonia Sotomayor and Ketanji Brown Jackson joined other colleagues in suggesting that there was no longer a controversy to decide.
“So tell me why it’s not moot?” Sotomayor asked Adam Unikowsky, the attorney representing Acheson.
Jackson told Unikowsky he was “asking us to take on extra work to end a case when we’ve all agreed it has to be ended.”
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“I think the court, with apologies, should take on extra work, your honor,” Unikowsky responded, drawing laughter from the courtroom.
The court, he added, should resolve whether testers like Laufer have the right — or standing — to sue properties they do not plan to visit. He suggested the justices should have institutional concerns about the last-minute abandonment of a case.
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Only Chief Justice John G. Roberts Jr. expressed repeated interest in having the court tackle the standing question at hand. He raised concerns about litigants manipulating the court system by ditching cases after the court has agreed to review them and about the hundreds of similar cases filed around the country.
If the court punts this one, “it doesn’t stop any of the other dozens of people, however many there are, who are doing the same thing. So we may have to come up with another case ... if it’s not addressed,” Roberts said. “How many times do we have to do this?”
Laufer’s lawyer, Kelsi Corkran of Georgetown Law’s Institute for Constitutional Advocacy and Protection, told Roberts that the unexpected developments in her client’s case were highly unusual and not an attempt to manipulate the court. Laufer, she added, will no longer file such lawsuits.
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Disability rights advocates say testers are needed to enforce the law because the ADA does not provide money damages, meaning there is little incentive to file a lawsuit among people who are intending to travel and experience discrimination while planning their trips.
They also note that if a person must have imminent travel plans to file a claim, any relief from a court would come long after their planned trip. Denying Laufer the right to sue, advocates say, could weaken ADA protections and make it more difficult to sue to enforce other civil rights laws.
Lower courts are divided. The U.S. District Court in Maine said Laufer lacked standing and dismissed her case. The U.S. Court of Appeals for the 1st Circuit reversed and sided with Laufer, citing a 1982 Supreme Court decision that upheld the standing of a Black tester to bring a racial discrimination case under the Fair Housing Act after the tester was turned away when trying to rent an apartment she had no intention of renting.
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When the Supreme Court justices did turn to the question of standing on Wednesday, many expressed reservations about whether to allow a person to sue after essentially clicking through a website without an intention to use the services. Several justices suggested there was a difference between Laufer’s digital research and the experience of Black civil rights activists who sat at segregated lunch counters with no intention of eating.
“So tell me how she is discriminated against by the inaccuracies on this website?” Kagan asked.
Laufer’s lawyer said in response that the case raises novel questions of how a person can experience discrimination on the internet, noting that ADA protections give disabled people the right to use a hotel’s services in the same way as a non-disabled person. The injury, Corkran said, is not just the lack of required information, but the message it sends that disabled people are excluded.
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“It’s as if you went up to a reservation desk in a wheelchair and the hotel had a practice of just ignoring anyone in a wheelchair or telling them to call a number,” Corkran said. “There is a dignity harm in being treated as invisible and not as a potential participant in the marketplace.”
If the court were to decide to resolve the case, it could look to the middle-ground position taken by the U.S. government, which has an interest in the case because it involves how to enforce federal law. Erica L. Ross, assistant to the solicitor general, said the government supports the right of testers to bring lawsuits to enforce the ADA only if they have engaged with the hotel websites in a meaningful way that shows they are considering a reservation.
Justice Neil M. Gorsuch tried to tease out whether that approach was acceptable to Laufer, whose lawyer said she was mostly comfortable with the government’s position.
The case is Acheson Hotels v. Deborah Laufer.
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