CREEC mourns the passing of fair housing legend Tracey McCartney

The fair housing world lost a giant when Tracey McCartney passed yesterday.  To us, Tracey embodied the saying that there is no limit to what you can accomplish if you don’t care who gets the credit.  Tracey worked tirelessly but in many ways behind the scenes — known and beloved by the fair housing community but no fan of self-promotion.  She played a crucial role in connecting lawyers and advocates who work for fair housing around the country, patiently herding us like cats, and ensuring a platform in which we could share knowledge, ideas, mutual support, and gallows humor.  She was terrific at connecting people on an individual level, as well, and was hilarious and self-deprecating in person.

Below is the press release issued by the Tennessee Fair Housing Council.  We miss you, Tracey, and will work to honor your memory.

Long-time leader of the Tennessee Fair Housing Council, Tracey McCartney left this world following illness. McCartney leaves behind a loving spouse, Nancy Blomgren of Nashville, and family who will scatter her ashes in a creek that runs by a 200-year-old white oak on her parents’ land. Here she will sustain deer and coyote, dogwood and mountain azalea.


The loss of Tracey McCartney represents a significant blow to the National Fair Housing Community. Tracey McCartney joined the Tennessee Fair Housing Council in February 1998. She was an attorney, admitted to the bars of both Alabama and Tennessee. She received a law degree from the University of Alabama in 1995. While in law school, she worked for 2½ years as a clerk/advocate for the Alabama Disabilities Advocacy Program, where she gained valuable fair housing experience dealing with group homes/zoning and reasonable accommodation issues.


In September 1995, she became one of the inaugural employees of the Central Alabama Fair Housing Center, which was established in Montgomery, Alabama, in 1995.


During her time at the Central Alabama Fair Housing Center, Tracey coordinated 516 individual testing visits in the areas of rental, sales and mortgage lending and assisted with 48 individual insurance tests. She also handled 141 individual complaints of housing discrimination (in addition to the hundreds of inquiries that implicated landlord-tenant or some other non-discrimination issue and were referred elsewhere), providing counseling on the law, testing, other types of investigation, conciliation, referral to HUD for investigation and referral to attorneys for litigation. She recruited and trained 90 testers for the center’s enforcement program.


Since joining the Tennessee Fair Housing Council in February 1998, Tracey provided leadership, management, and legal service. She was responsible for setting the broad direction of the agency; supervising the enforcement staff on testing, case intake and litigation; and supervising the operation of the National Fair Housing Advocate web site at Tracey’s strong skills and reputation made her a sought after trainer and consultant.


McCartney was a stalwart advocate for expanding housing opportunities to all. Her legacy will live on through the many communities
and lives she touched.

Settlement Requires Major Improvements in Conditions for Prisoners With Disabilities at Montana State Prison

ACLU, CREEC, and the Montana Department of Corrections Resolve Americans with Disabilities Act Claims Remaining from 1994 Class-Action Lawsuit Over Prison Conditions

March 2, 2017

ACLU of Montana, 406-203-3374,
Amy Robertson, Civil Rights Education and Enforcement Center, 303-551-5156,
Alexandra Ringe, national ACLU, 212-549-2582,

MISSOULA, Mont. — Attorneys for prisoners with disabilities at the Montana State Prison and the state of Montana today filed a proposed settlement agreement that will bring the prison into greater compliance with the Americans with Disabilities Act. This agreement guarantees that prisoners with physical disabilities will have greater access to facilities and programs at the prison that are available to the rest of the population, like vocational training programs and prison jobs. In addition, the agreement requires that prisoners with mental disabilities shall be given reasonable accommodations when needed, such as in disciplinary hearings and education programs. Prisoners with disabilities will not be disciplined for behavior that is a product of a mental illness or physical disability. They will also be ensured the accommodations they need to participate in work assignments.

“The Montana Department of Corrections is to be congratulated for working with the plaintiffs to reach this settlement,” said Jon Ellingson, lead local counsel and staff attorney for the ACLU of Montana. “The department’s actions demonstrate a commitment to prison reform that both helps prisoners rehabilitate and benefits the public when these prisoners reenter society after serving their terms.”

The class-action lawsuit, Langford v. Bullock, originated 23 years ago following riots at the Montana State Prison. The parties reached a settlement long ago, and the prison complied with all provisions with one exception: compliance with the requirements of the Americans with Disabilities Act. The agreement filed today finally resolves that issue. The ACLU National Prison Project, the ACLU of Montana, and the Civil Rights Education and Enforcement Center of Denver, Colorado (CREEC) participated in the final negotiations with the state.

“This agreement reminds us that our prisons contain many people with physical and mental disabilities who are entitled to be treated equally and humanely under the law. This agreement helps us reach that goal,” observed Amy Robertson, CREEC’s co-executive director.

“Without the appropriate accommodations and programs, people with physical and mental disabilities can suffer terribly in prison, and can be denied paths to earn their release by completing programs they need to be paroled,” said Eric Balaban, senior staff attorney with the ACLU National Prison Project. “This settlement will help ensure that prisoners with disabilities at the Montana State Prison can work their way to freedom like prisoners who don’t have disabilities.”

“The ACLU of Montana is proud to have participated in this lawsuit, the result of which brings substantial prison reform to the state of Montana,” said Caitlin Borgmann, executive director of the ACLU of Montana. “It needs to be emphasized that reform inside our prisons benefits the public by better preparing the prisoners for life outside of prison.”

The parties have jointly filed a motion with the court requesting preliminary approval of this class action settlement. If the court approves, a notice will go out to prisoners at Montana State Prison, and the court will schedule a final fairness hearing for later in the year.

For more information about Langford v. Bullock, please visit CREEC’s Langford case page.



Disability Rights Organizations Oppose H.R. 985

H.R. 985, the “Fairness in Class Action Litigation Act of 2017,” is currently before the House Judiciary Committee.  It would eviscerate class actions in many important ways.  In our letter to the Committee — joined by 37 other disability rights organizations — we explained how devastating it would be to cases that improve the lives of people with disabilities.

The Honorable Bob Goodlatte Chairman
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

The Honorable John Conyers, Jr. Ranking Member
Committee on the Judiciary
U.S. House of Representatives
Washington, DC 20515

Re:  H.R. 985 – the Fairness in Class Action Litigation Act of 2017.

Dear Chairman Goodlatte and Ranking Member Conyers:

The disability rights organizations, individuals with disabilities, and their family members who have signed below strongly oppose H.R. 985, the Fairness in Class Action Litigation Act of 2017.

H.R. 985 would be devastating to the rights of people with disabilities.  By severely limiting attorneys’ fees in cases seeking only injunctive relief, it would remove class actions as an essential tool for those who seek to improve the systems that serve people with disabilities.  In the paradoxically-named “Class Member Benefit” provision, attorneys’ fees for injunctive cases – with no claim for damages — are limited to “a reasonable percentage of the value of the equitable relief, including any injunctive relief.”  How can one put a value, however, on the important gains achieved through these class action lawsuits?  Community living?  Effective communication?  Freedom from abusive conditions?

And ultimately, without the ability to pay the rent, pay their staff, and make a modest living, what lawyers or organizations will be able to bring these cases?

As you are aware, Rule 23(h) of the Federal Rules of Civil Procedure requires the court to review and approve any attorneys’ fees awarded in a class action, and specifically requires that the Court “must find the facts and state its legal conclusions” supporting any award.  Fed. R. Civ. P. 23(h)(3).  Decades of precedent ensure that these awards are reasonable in amount — reflecting reasonable hours actually worked multiplied by a reasonable rate — and are fair to the class.  As Justice Alito explained, writing for the majority in Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), this “lodestar” rate is “presumptively sufficient” to achieve the goals of attorneys’ fees provisions without providing a “windfall” to attorneys.  Id. at 552.

Indeed, the attorneys’ fees provision in section 1718(b)(3) will provide an incentive to defendants to prolong litigation with the goal of ensuring that the class incur fees and costs that exceed the value of injunctive relief sought by the class – directly contrary to the stated goal of this legislation to ensure “prompt” recoveries.  Under this bill, class counsel would not be paid for those fees and costs, even though it was defendant’s litigation strategy that made the expenditure of time and costs necessary.  The Supreme Court addressed this precise situation in City of Riverside v. Rivera, 477 U.S. 561 (1986), upholding an award of attorney’s fees and costs to the plaintiff’s counsel that was more than seven times greater than the value of the relief obtained for the plaintiff, and noting that a defendant “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.”   Id. 580 n.11

In light of this, respectfully, no further limits are required to ensure fairness to the class; the proposed limits — far from being “class member benefits” — would take from potential classes of disabled people this essential tool for improving their lives.

The undersigned are also concerned about the provision prohibiting a single individual or organization from being a named plaintiff in more than one class action.  This provision overlooks the fact — especially in the disability rights arena — that the world is still very inaccessible, and that it is not unusual for individuals with disabilities to encounter discrimination in a variety of different contexts.  It would also prohibit organizations such as the American Association of Retired Persons, the National Association of the Deaf, or the National Federation of the Blind from being a class representative more than once.  This would significantly hobble their mission to advocate for people with disabilities and increase the accessibility and integration of such individuals.

The cases listed below are only a small sample of the many class actions that have sought to improve life for people with disabilities.  Most if not all would be impossible under the proposed legislation.

  • Willits v. City of Los Angeles, 2016 WL 4500781 (C.D. Cal. Aug. 26, 2016): Class of pedestrians with disabilities seeking accessible sidewalks.
  • National Organization on Disability v. Tartaglione, 2001 WL 1258089 (E.D. Pa. Oct. 22, 2001): Class of people with visual and mobility impairments seeking to secure access to polling places.
  • Commonwealth of Mass. v. E*TRADE Access, Inc., 03-11206-MEL (D.Mass. Dec. 7, 2007): Class of blind people seeking to make automatic teller machines accessible.
  • Bates v. United Parcel Serv., 204 F.R.D. 440 (N.D. Cal. 2001): Class of deaf truck drivers seeking to secure job opportunities.
  • Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334 (N.D. Cal. 2008): Class of people with mobility and vision disabilities seeking removal of barriers along outdoor designated pedestrian walkways.
  • Lane v. Kitzhaber, 283 F.R.D. 587 (D. Or. 2012): Class of individuals with intellectual or developmental disabilities seeking improved employment conditions.
  • Alexander A. ex rel. Barr v. Novello, 210 F.R.D. 27 (E.D.N.Y. 2002): Class of children with psychiatric disabilities seeking to secure prompt treatment.
  • Bacal v. Southeastern Pennsylvania Transportation Authority, 1995 WL 299029 (E.D. Pa. May 16, 1995): Class of people with disabilities seeking to secure access to paratransit.
  • Dunakin v. Quigley, 2017 WL 123011 (W.D. Wash. Jan. 10, 2017): Class of nursing home residents seeking to reform nursing home screening and referral to promote independence.
  • Boulet v. Cellucci, 107 F. Supp. 2d 61 (D. Mass. 2000): Class of individuals with intellectual and developmental disabilities seeking reasonably prompt services.
  • Romano v. SLS Residential Inc., 298 F.R.D. 103 (S.D.N.Y. 2014):  Class of psychiatric patients seeking to challenge mistreatment.
  • Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001): Class of inmates and parolees with disabilities seeking accessible programs and services.
  • Civic Ass’n of the Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622 (S.D.N.Y. 1996): Class of deaf people seeking accessible alarm boxes.
  • Toney-Dick v. Doar, 2013 WL 5295221 (S.D. N.Y. Sept. 16, 2013): Class of people with disabilities seeking to secure appropriate disaster planning.
  • Williams v. Conway, 312 F.R.D. 248 (N.D. N.Y. 2016): Class of deaf inmates seeking effective communication.
  • Steward v. Abbott, 189 F. Supp. 3d 620 (W.D. Tex. 2016): Class of individuals with intellectual and developmental disabilities seeking to receive services in the community.
  • Ball v. AMC Entm’t, Inc., 246 F. Supp. 2d 17 (D.D.C. 2003): Class of deaf movie patrons seeking effective communication.
  • B. v. Norwood, 170 F. Supp. 3d 1186 (N.D. Ill. 2016): Class of children with disabilities and chronic health conditions seeking adequate nursing services.
  • Lacy v. Dart, 2015 WL 1995576 (N.D. Ill. Apr. 30, 2015): Class of inmates who use wheelchairs seeking accessible cells, transport, and access to court.
  • Benjamin v. Dep’t of Pub. Welfare of Com. of Pennsylvania, 2014 WL 4793736 (M.D. Pa. Sept. 25, 2014): Class of individuals with intellectual and developmental disabilities seeking to receive services in the community.
  • Harry M. v. Pennsylvania Dep’t of Pub. Welfare, 2013 WL 4500051 (M.D. Pa. Aug. 21, 2013): Class of deaf Medicaid recipients seeking effective communication.
  • V. L. v. Wagner, 669 F. Supp. 2d 1106 (N.D.Cal. 2009): Class of people with disabilities challenging cutbacks to in-home attendant care program that prevents out-of-home placement.
  • Brantley v. Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal 2009): Class of seniors and people with disabilities challenging restrictive eligibility criteria for Adult Day Health Care that would have caused unnecessary placement in nursing homes.

We urge that the Committee not move this bill forward.  If the bill does move, we urge that hearings be convened so that this Committee may hear from the many people — including people with disabilities — whose lives this legislation will affect.

Thank you for your attention to this letter.



Amy F. Robertson
Co-Executive Director
Civil Rights Education and Enforcement Center

cc:        Members of the House Judiciary Committee (by fax)


American Council of the Blind
Arizona Center for Disability Law
Association on Higher Education And Disability (AHEAD)
Autistic Self-Advocacy Network
Center for Accessible Technology
Center for Public Representation
Colorado Cross-Disability Coalition
Disability Independence Group
Disability Law Center of Massachusetts
disAbility Law Center of Virginia
Disability Law Colorado
Disability Rights Advocates
Disability Rights Bar Association
Disability Rights California
Disability Rights Center – New Hampshire
Disability Rights DC at University Legal Services
Disability Rights Education and Defense Fund
Disability Rights Florida
Disability Rights Iowa
Disability Rights Maryland
Disability Rights Mississippi
Disability Rights Nebraska
Disability Rights Pennsylvania
Disability Rights Tennessee
Disability Rights Texas
Disability Rights Vermont
Disabled Parent Rights
Helping Educate to Advance the Rights of the Deaf (HEARD)
Judge David L. Bazelon Center for Mental Health Law
Legal Aid at Work (formerly known as Legal Aid Society – Employment Law Center)
National Association of the Deaf
National Disability Rights Network
National Federation of the Blind
National Health Law Program
Paralyzed Veterans of America
Washington Lawyers’ Committee for Civil Rights and Urban Affairs

DHS and CBP: Duties to People with Disabilities

The Department of Homeland Security (DHS) and its components, including Customs and Border Protection (CBP), are prohibited by § 504 of the Rehabilitation Act from discriminating against people with disabilities (PWD).1 Importantly, this means that PWD arriving at airports and interacting with CBP officers and those in detention facilities are entitled to reasonable accommodations/modifications if necessary to avoid disability discrimination.2 If your family or client requires it due to a disability, request a reasonable accommodation,” and state the disability and the reason it makes the requested accommodation necessary.  Examples of accommodations include:

  • Access to food, water, and/or medication.
  • Effective communication, for example:
    • sign language interpreters for people who are deaf. Crucially, effective communication for people not fluent in American Sign Language will require a “Certified Deaf Interpreter.”  Be sure to request a “Deaf/Hearing Team.”
    • reading/translating forms for people who are blind.
  • Accommodations for physical disabilities, for example,
    • Accessible restrooms. 
    • Wheelchairs.
    • Protection from extreme temperatures.
    • If handcuffs must be used, may need to be looser (circulation) or in front (so a deaf detainee can communicate).
  • Other accommodations we haven’t thought of: contact us.  

This protection covers only people with disabilities, defined (in part) as people who have a physical or mental impairment that substantially limits one or more major life activities.3 The following conditions would likely be considered disabilities under the law:  blindness; deafness; paralysis or significant motor impairment; diabetes; cognitive disability; serious mental illness. The following may require a more rigorous showing that they substantially limit a major life activity: digestive, bowel, or bladder dysfunction; respiratory or heart disease; food allergy. 4

The Civil Rights Education and Enforcement Center has significant experience with litigation under the Rehabiltiation Act and is ready to consult with other lawyers or assist with pleadings to enforce these rights.; 303-551-5156.

  1. 29 U.S.C. § 794; 6 C.F.R. § 15.1 et seq.; DHS Directive No. 065-01 (; DHS Instruction No: 065-01-001 ( ); DHS, Guide 065-01-001-01 (“Guide”), at 23-24 (
  2. Alexander v. Choate, 469 U.S. 287, 301 (1985); Directive 065-01, ¶ V(A)(2); Guide at 17-18; Franco-Gonzalez v. Holder, 2013 WL 3674492, at *4 (C.D. Cal. Apr. 23, 2013) (holding detainees entitled to reasonable accommodations under § 504).
  3. 29 U.S.C. § 705(9)(B), incorporating 42 U.S.C. § 12102.
  4. This list is by way of example only. Any condition that substantially limits a major life activity is included.

CREEC to receive a Visionaries in Action Award from the GLBT Community Center of Colorado

Image: Logo reading Jokers Jewels & Justice 2017" against a blue backgrounds, and below it the words "Liberty & Justice for All Is No Joke" against a background of red and white stripes.}CREEC is thrilled and honored to receive a 2017 Visionaries in Action Award from The GLBT Community Center of Colorado (The Center)!

In notifying us of the award, The Center’s Board Chairman, J. Ryann Peyton wrote that The Center was impressed by “CREEC’s commitment to the protection of civil rights for all Coloradoans, especially those who are members of the LGBT communities.”

CREEC has assisted clients in cases at the forefront of LGBT civil rights issues. Protecting individuals from harassment based on sexual orientation, safeguarding survivor benefits for same sex spouses, and assisting with fellow-awardee Emma Shinn’s Name Change Project are recent examples.  CREEC has also collaborated with the Denver Metro Fair Housing Center in putting on a Trans* Legal Forum, teaching about the rights of trans*, non-binary, and genderqueer individuals in fair housing, public accommodations, and other contexts.

We are thrilled to be honored alongside two amazing women who have made significant contributions to the LGBT community and have helped advance LGBT civil rights:  Sarah Parady and Emma Shinn.

The Jokers, Jewels & Justice 2017 Dinner themed “Liberty & Justice for All is NO JOKE” will be held at the Brown Palace Hotel and will feature as keynote speaker Sarah McBride, National Press Secretary for the Human Rights Campaign and transgender rights advocate. We hope you’ll join us at this wonderful event.

The Center opened in 1976 and over the years has grown to become the largest community center in the Rocky Mountain region, giving voice to Colorado’s LGBT community and playing a pivotal role in statewide initiatives to reduce harassment and discrimination. The Center supports 40,000 people a year though wide ranging programs from monthly free legal clinics; to the lead presenter of Colorado’s PrideFest and community seminars on overcoming wide-ranging obstacles for the LGBT community.  Jokers, Jewels & Justice will help to advance and support the legal needs of Colorado’s LGBT community.



Welcome Marième!

Image: a dark-skinned woman sits on the grass in a denim shirt and silver earrings.CREEC welcomes our winter extern Marième Diop to our Denver office!

Marième is a junior at Swarthmore College — Amy’s alma mater — and is originally from Senegal!  She grew up in Dakar, and moved to the US in 2012.  She is interested in social justice, traveling, and languages.  At Swarthmore, she is double-majoring in psychology and Spanish and Latin American literature.

Marième will be with us for a month, before taking off for a semester in Uruguay.  She’ll be attending client and counsel meetings, educational presentations, and court hearings, and generally getting to see our practice up close.

We’re very excited to have her at CREEC.  Stop by and say hello!


Class Action Lawsuit Alleges Disability Discrimination at Red Rocks Amphitheatre

Image: photo of an outdoor amphitheater shot from the back row with the audience between the camera and the stage, with the foothills of Colorado in the background.A coalition of local disability-rights organizations filed a class action suit in Colorado’s Federal District Court yesterday claiming that the City of Denver has acted to deny those who use wheelchairs the opportunity to meaningfully access to Red Rocks Amphitheatre.  CREEC and its co-counsel at the Colorado Cross-Disability Coalition (CCDC) and Disability Law Colorado (DLC) filed the suit against the City of Denver, claiming disability discrimination for failure to make reasonable accommodations to allow people who use wheelchairs to access and enjoy Red Rocks Amphitheatre.

If you are a wheelchair-user and have had problems purchasing tickets to Red Rocks, specifically to the front row, please contact us at

Red Rocks, owned and operated by the City of Denver, is a unique Colorado venue carved into a mountain. The only accessible seats at Red Rocks are in the front row or at the very top and back of the theater (Row 70). In fact, of the 9,525 seats at Red Rocks, only 78 seats are accessible to wheelchair users — 40 seats short of what is required by the regulations implementing the Americans with Disabilities Act (ADA). According to the suit, despite the limited numbers of accessible seats available, Red Rocks and its contractors routinely engage in practices that further decrease the number of seats available for wheelchair users. For example, Red Rocks does little to ensure that tickets for accessible seats are sold or given to people who actually need accessible seating. What’s more, when people who do not need accessible seating end up in the front row and those using wheelchairs ask to be seated in the accessible section, Red Rocks refuses to require that a switch occur even though they could, by law, require it.

Another issue according to the class of wheelchair-using plaintiffs, is that tickets to accessible seating are regularly unavailable within minutes of going on sale and then are only available on theImage: front row of the amphitheater consisting of a wooden bench attached to rows made of stone. On top of the front row a tape measure is extended. secondary market. Because many of the accessible seats at Red Rocks are in the front row, they are highly sought-after and typically resell at a significantly increased cost – up to four or five times the face value. In comparison, those who are not competing for the coveted 78 accessible seats, can much more easily buy a ticket to one of the remaining 9,447 seats that are not accessible to wheelchair users. Thus, according to the suit, those who use wheelchairs and wish to attend a concert at Red Rocks are routinely forced to pay a much higher price than other concert-goers who do not use wheelchairs.

The plaintiffs also claim that even getting to the seats at Red Rocks is a challenge for those who use wheelchairs and the City has refused to fix the problem, amounting to disability discrimination. Specifically, there is only one accessible parking lot to serve the majority of concert-goers at Red Rocks – the upper south lot. Travelling from the upper south lot to the accessible seats in the front row of the theater requires visitors to traverse a steep incline – which is difficult, if not impossible, for those using wheelchairs. Thus, as a result of a prior lawsuit brought against Red Rocks in 2000, Red Rocks provides a shuttle service to assist those trying to get from the upper south lot to the front of the theater. Specifically, according to its website policy, “Red Rocks Ampitheatre operates shuttle vehicles to transport guests with disabilities or mobility impairments that posess [sic] tickets for the front section of the amphitheater.” However, in practice, Plaintiffs claim that Red Rocks staff demand that concert-goers with disabilities produce a Row 1 ticket in order to access the shuttle – something that is not required of those without visible disabilities. Furthermore, Plaintiffs claim that because the shuttle is not clearly identified as being only for those who have mobility impairments, it is routinely used by able-bodied concert-goers. This forces those who use wheelchairs to wait long periods while able-bodied concert-goers are being transported.

Plaintiffs assert that they have taken these issues to management at Red Rocks and the City of Denver, but to no avail. They claim they had no option left other than to take this to court. They also point out that this is not just about complaining about not getting to see a particular show on a particular day, but rather this goes to the heart of the meaning of the ADA. As President Obama proclaimed on the anniversary of the ADA just this year, “The ADA sought to guarantee that the places we share – from schools and workplaces to stadiums and parks – truly belong to everyone. It reflects our Nation’s full commitment to the rights and independence of people with disabilities, and it has paved the way for a more inclusive and equal society.”

Plaintiffs are asking the court to require the City of Denver to implement systems that ensure that tickets in the accessible section actually be sold to, given to and used by people who require accessible seating. Plaintiffs are also asking that shuttle service be provided to all concert-goers with mobility impairments who need it. The Plaintiffs are not seeking monetary damages. In the words of Kirk Williams, one of the named Plaintiffs, “This is not about money. All I want is to be able to go to shows at Red Rocks with my friends like I used to. Now, my friends get to go enjoy themselves, but often I can’t even get a ticket. Attending concerts at Red Rocks is a unique Colorado experience and I shouldn’t be denied that opportunity just because I ended up using a wheelchair.”

NAD Lawsuit Against Harvard and MIT Moves Forward, Obligation to ensure equal treatment applies in emerging technologies

November 4, 2016 — Judge Mark G. Mastroianni of the District Court of Massachusetts denied Massachusetts Institute for Technology’s (MIT) and Harvard University’s motions to dismiss the National Association of the Deaf’s (NAD) and other named plaintiffs’ complaint that the institution discriminates against deaf and hard of hearing people by failing to caption the vast and varied array of online content they make available to the general public, including massive open online courses (MOOCs). Today’s decision affirms that plaintiffs’ case will be going forward.

MIT and Harvard suffered a huge blow to their positions that the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act do not require the institution to provide closed captions on its online videos that it makes open and available to the world. Plaintiffs are represented by Disability Rights Education & Defense Fund (DREDF), Civil Rights Education and Enforcement Center (CREEC), NAD, and Disability Law Center (DLC) in the lawsuit against MIT, and by CREEC, NAD, and DLC in the lawsuit against Harvard.

Arlene Mayerson, DREDF Directing Attorney, said, “I am thrilled that we have made this important inroad into ensuring that 21st century online education is accessible to all.”

Today’s decision rejected Harvard’s and MIT’s arguments that they were “entitled to statutory exemptions for accommodations that impose an unreasonable financial or administrative burden, or require a fundamental change in the good at issue.” Judge Mastroianni noted Defendants’ arguments were “inappropriate for resolution on a motion to dismiss. A motion to dismiss addresses the plausibility of a plaintiff’s claims, not the strength of a defendant’s affirmative defenses.”

Tim Fox, CREEC Co-Executive Director, said, “We are very pleased with the Court’s decision, and believe that it will pave the way for deaf and hard of hearing persons to have equal access to the lifelong learning opportunities that higher educational institutions are now offering.”

Judge Mastroianni adopted, in full, the February 2016 findings made by Magistrate Judge Katherine Robertson on both cases. Unhappy with Magistrate Robertson’s decision, Harvard and MIT had filed objections to the report and recommendations with Judge Mastrioanni.

“Access to education is paramount for all, and the Court’s order makes it possible for deaf and hard of hearing people to have access to online education,” said Howard A. Rosenblum, NAD Chief Executive Officer.

“We are very pleased that our clients will have the opportunity to establish that these world renowned institutions must ensure that individuals who are deaf or hard of
hearing are able to gain access to the same learning opportunities that everyone else has,” said Christine Griffin, Executive Director of the DLC.

The February 2016 report found, in part, that:

• “Plaintiffs’ theory of discrimination – that the deaf and hard of hearing lack meaningful access to the aural component of the audiovisual content [MIT] makes publicly available online – fits squarely within the parameters of Section 504 as delineated by the Court. There is nothing novel about premising Section 504 liability on a federal fund recipient’s failure to provide the deaf and hard of hearing with meaningful access to aural communications.”

• “…key principles of Federal disability discrimination law: the obligation to provide an equal opportunity to individuals with disabilities to participate in, and receive the benefits of, the educational program, and the obligation to provide accommodations or modifications when necessary to ensure equal treatment,” in the context of the use of emerging technologies.”

The report also rejected the universities’ claims that plaintiffs’ request for closed captioned videos deprives it “of the flexibility to choose an appropriate auxiliary aid [to access the aural content on the videos]. . . Here, Plaintiffs have alleged that [MIT/Harvard] is not providing effective communication and have requested captioning. The flexibility to choose an appropriate auxiliary aid does not extend so far as to allow a public accommodation to choose to provide no auxiliary aid when one is required for effective communication if a reasonable one exists.”

The cases, filed in U.S. District Court in Massachusetts, asserts that Harvard and MIT each deny deaf and hard of hearing people access to thousands of videos and audio tracks that each university makes publicly available, for free, on broad-ranging topics of general interest. These include, for example, campus talks by luminaries such as President Barack Obama and Microsoft founder Bill Gates; educational videos made by MIT students for use by K-12 students; and entire semesters’-worth of courses. The purported claim is that their content is available free to anyone with an Internet connection. Millions of people have visited the websites.

CREEC & DMFHC Settle Family Status and Disability Housing Discrimination Complaints

Denver, CO — The Denver Metro Fair Housing Center (DMFHC) and the Civil Rights Education and Enforcement Center (CREEC) resolved fair housing complaints against a management company that explicitly discriminated against families with children and people with disabilities.

When DeWayne Curtis was looking for an apartment for himself, his wife, and his toddler son, he responded to a Craigslist ad for the Langford Apartments in Littleton. When he reached the apartment manager, however, he was told that the apartment did not accept families with children. Mr. Curtis, knowing this was illegal, reached out to the DMFHC.

The DMFHC conducted an undercover investigation of the Langford, in which the management company’s employee was caught on tape telling investigators, “no kids,” and “we don’t accept children.” He also told a Deaf investigator, “we don’t allow service animals,” and “if you’re deaf I don’t think this is the place for you.”

These are all open and shut fair housing violations.

DMFHC, with the help of lawyers at CREEC, filed complaints with the Department of Housing and Urban Development (HUD) against Katchen & Company and the owners of the Langford for discriminating against families with children and people with disabilities on July 12, 2016.

These complaints follow two previous complaints against Katchen, one of which resulted in DMFHC educating Katchen staff on fair housing laws requiring reasonable accommodations for service animals; the second — not long after — requiring a lawsuit to prevent the eviction of two Katchen tenants following their requests to accommodate their service animals.

Under the Fair Housing Act, owners, managers, and other housing providers must make reasonable accommodations in their rules, policies, practices and procedures in order to ensure full enjoyment of dwellings by people with disabilities. This includes allowing people with disabilities to keep their service animals even if the housing provider has a “no pets” policy.

The Fair Housing Act also prohibits discrimination on the basis of “familial status,” that is, being a family with kids under 18.

After filing at the Department of Housing and Urban Development (HUD), DMFHC and the Curtis family were represented by CREEC during the investigation and conciliation process. Under the terms of the settlement, Katchen employees will receive fair housing training, a company-wide antidiscrimination policy will be adopted, and future available housing advertisements will include explicit language encouraging families with children and people with disabilities to apply. In addition, the settlement provided for $70,000 in relief to the complainants.

“I was glad to be able to reach out to the Denver Metro Fair Housing Center,” Mr. Curtis stated. “I appreciated that DMFHC and CREEC were willing to go to bat for my family after we faced this blatant discrimination and am very glad to know that no other families will be turned away from the Langford apartments like we were.”

Arturo Alvarado, Executive Director of the DMFHC, urged all housing providers to be aware of the requirements of the Fair Housing Act. He stated, “It is troubling to know that individuals and families face disability and familial status housing discrimination in the community 28 years since the passing of the fair housing amendment act of 1988. It is essential for housing providers to comply with all of their responsibilities under the law.”

The Federal Fair Housing Act prohibits discrimination based on race, color, religion, national origin, sex, familial status, and disability; the Colorado Anti-Discrimination Act also prohibits discrimination based on sexual orientation, gender identity, and marital status. If you believe you have encountered housing discrimination, please contact the CREEC at 303-757-7901 or the Denver Metro Fair Housing Center at 720-279-4921.

Welcome Mark Lindsay to CREEC’s Board of Directors!

Image: portrait photo of African American man with glasses wearing a suit jacket and tie.CREEC is very excited to announce that Mark Lindsay, Director of the Healthcare and Pharmaceuticals practice area of The Livingston Group LLC, has joined CREEC’s Board of Directors.

Here are just some of Mark’s many accomplishments, plagiarized shamelessly from his Livingston Group page:

Mark served on President Obama’s Transition Team and in President Clinton’s White House as Assistant to the President for the Office of Management and Administration.  His areas of responsibility included the White House Military Office, which managed Air Force One, the White House Communications Agency, the Medical Unit, and Camp David; running the White House Operations; and the Executive Office of the President’s Office of Administration, which was responsible for finance, information systems, human resources, legal/appropriations and security.  Mark’s office was responsible for the logistics of all domestic and international Presidential travel and special air missions.   President Bill Clinton selected Mark to be the operational lead for the White House’s 2001 transition preparation and execution.

Prior to his appointment to the White House, Mark served as senior legislative aid and counsel to Congressman Louis Stokes (D-OH).  He worked closely with Democrats and the Congressional Black Caucus on a number of business and economic issues.

Mark was a member of Senator Hillary Clinton’s Minnesota Finance Committee for her 2008 Presidential campaign.

Before joining The Livingston Group, Mark was with UnitedHealth Group, one of the world’s largest healthcare companies, where he held a number of senior positions including President of the AARP Pharmacy Services Division and Vice President of Public Communications and Strategy.

Mark holds a B.A. from Macalester College in St. Paul, Minnesota; a J.D. from Case Western Reserve University School of Law; an M.A. in International Affairs from Georgetown University; and a graduate degree from the Advanced Management program at the University of Pennsylvania’s Wharton Business School.  He is a member of the District of Columbia Bar.

Amy was privileged to work with Mark early in her career when they were both associates at Dorsey & Whitney in Minneapolis.  They both moved to Washington, D.C. around the same time, and Amy and Tim got to spend time with Mark and his wife, Carla Morris.  Tim and Amy have been hoping to have the chance to work with Mark again, and are very pleased that he has agreed to serve on CREEC’s board.

CREEC’s board and staff extend a hearty welcome to Mark!


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