January 31, 2024
With a supermajority on the Supreme Court of the United States (SCOTUS), conservative justices have made quick work of undermining and dismantling decades of civil rights advances. In the process, the court has lent credibility to fringe right-wing legal arguments, exercising questionable jurisprudence in pursuit of an unpopular conservative agenda. This term, it remains to be seen whether the civil rights of those with disabilities will endure; the Court’s latest ruling on this topic does not necessarily inspire confidence.
On December 4, SCOTUS dismissed Acheson Hotels LLC v. Laufer, exactly two months after oral arguments. The case was dismissed based on mootness, and the full court opted not to take a stance on the fundamental issues that were potentially at stake. This result was certainly preferable to the alternative – a ruling in favor of Acheson and dismantling of civil rights testing. However, it leaves the door open to future cases that would similarly threaten the enforcement of civil rights laws for people with disabilities. In particular, the remaining split in opinions between circuit courts suggests that civil rights testing and enforcement of the Americans with Disabilities Act (ADA) are still vulnerable to legal challenge. Though the ADA may have been spared on a technicality for now, the Acheson decision makes it clear that this reprieve may only be temporary. Acheson is the latest in a stream of recent attacks on civil rights by conservatives. The case is part of a pattern of far-right reactionaries weaponizing the courts to dismantle labor protections, housing rights, and health guidelines.
RELEVANT LEGAL TERMSMootness: The state of a case wherein a court’s opinion will have no effect on the dispute. This usually applies when a dispute has been resolved through action or by a party requesting dismissal. Usually, a case is dismissed if it is moot regardless of any other legal issues at play. Standing: Who can sue based on this law/who is covered by this law? Tangible and intangible harm: Traditionally, physical and economic harm are considered “tangible.” By contrast, “intangible” harm is “noneconomic and nonphysical,” such as a blow to a company’s reputation without any impact on its stock value. Psychological harm is often caught between the two categories, with its categorization often dependent on its downstream effects. See “Constitutional Injury and Tangibility” by Rachel Bayefsky (2018). Dignitary harm: A legal basis for a lawsuit arguing that the plaintiff suffered humiliation, blows to dignity, or harm to their reputation. Enforcement: The process or mechanism by which people or entities are made to comply with a law. Testers: Testers are individuals who pose as persons seeking certain services, accommodations, or opportunities (e.g. housing, employment, accessibility, goods or services, etc.) for the purpose of collecting information. The information gathered is analyzed and may be used to determine an entity’s compliance with applicable standards for equal treatment. (Equal Rights Center) Reservation Rule: A regulation interpreting Title III of the ADA. Among many requirements, the Reservation Rule mandates any “public accommodation that …[owns or operates]… a place of lodging” to provide descriptive information about any accessible guest rooms, including whether they have them, and change policies in order to make reservations accessible to individuals with disabilities. Nothing in the Rule indicates or implies that it applies exclusively to individuals with disabilities who have actionable intent to stay at the place of lodging. § 28 CFR 36.302(e)(1) |
Acheson Hotels LLC v. Laufer is significant because of its potential implications for civil rights “testers.” A civil rights tester is someone who “tests” whether an organization is in compliance with civil rights laws like the ADA, even if they personally do not plan to avail themselves of the organization’s services. Deborah Laufer, a disability rights activist with multiple sclerosis, examines ADA compliance by hotel websites; specifically, she tests their compliance with the Reservation Rule. As a civil rights tester, she has sued hundreds of hotels that were out of compliance with the law. One such violator included a Maine inn previously owned by Acheson Hotels, a venture of Maine-based hotelier Julianna Acheson.
For digital products, such as websites, applications, or software, disability testers help ensure that the products meet certain accessibility standards and guidelines, such as the Web Content Accessibility Guidelines (WCAG), to make them accessible to people with disabilities.
If a tester finds that an organization is not in compliance with the law, they have traditionally been empowered to file a lawsuit to bring that organization into compliance. Disability testers are essential because the ADA relies on lawsuits and administrative complaints as its primary enforcement mechanisms. Without testers, disabled people are often forced to risk their safety and finances for services that may not be in compliance with the ADA. This can take the form of, for example, being unable to ascertain whether a hotel room will actually be accessible prior to booking, putting the disabled traveler in an unacceptably precarious position. A recent Columbia Law Review article quantified the risks of inaccessible hotels to disabled travelers using results from a survey of disabled travelers. The survey participants were first asked whether they were able to find the information they needed to book overnight accommodation on the first try. Those who said that they were able to find the accessibility information they needed on the first try were also asked whether they were able to reserve an accessible room, and if the room they reserved actually had all of the promised accessibility features. Less than a quarter of respondents found that the accessibility information they needed was readily available and that the room they reserved actually had all of the accessibility features they’d been promised (Figure 1). One study participant asserted, “…if a tester identified these problems before real discrimination occurred it would make my life vastly easier.” This participant, an athlete traveling for a competition, was relegated to washcloth baths for four days because of the hotel’s refusal to comply with the ADA.
Figure 1
The question at the heart of Acheson was whether testers, who may have no intention of actually booking accommodations at a given establishment, have Article III standing to bring suits against hotels and similar businesses that fail to comply with the law by omitting disability accessibility information from their websites and other digital products.
To grasp the significance of Acheson, it’s helpful to understand some other relevant laws and legal precedence. The key law behind this case is Title III of the Americans with Disabilities Act (ADA). Title III guarantees “full and equal enjoyment” of public accommodations – any business or non-governmental public space, including websites, with the exception of private membership clubs and religious entities. Under the ADA, businesses must not discriminate against people with disabilities through exclusion, segregation, or unequal treatment. Specific requirements can include architectural accessibility (ramps, elevators, railings, parking spaces); informational accessibility (braille, American Sign Language translation, flashing emergency alarms); or reasonable accommodations or modifications to existing policies, like allowing service dogs or providing use of an employees-only bathroom. As long as the accommodation or modification is reasonable, a business is legally required to provide it. Additionally, a regulation interpreting Title III known as the Reservation Rule requires hotels and other facilities that provide short-term stays to make information about their establishment’s accessibility available online so that disabled customers do not arrive to find they cannot use a room they booked. Deborah Laufer had experienced this exact issue in the past—she was once forced to sleep in her car after discovering upon arrival that the room she booked was inaccessible to her. This experience spurred her to become a tester to hold similar violators legally accountable.
Another legal key to Acheson comes from the 1982 Supreme Court case Havens Realty v. Coleman. Havens set precedent for the right of “testers” to sue for civil rights violations. The decision held that testers have legal standing to sue regardless of whether they intentionally put themselves at risk of discrimination. While the Havens decision concerned the standing of testers with respect to the right to information established by the Fair Housing Act, its rationale and precedent have been broadly applied to other laws like the ADA.
A potential blow to Havens, whether in the form of rejecting it entirely or narrowing its scope, is significant because legal action in the form of suits and settlements is the most significant mechanism of enforcement for the ADA and many other civil rights laws. Legal action may be initiated by the Department of Justice, representative organizations, or harmed individuals.1 The immense resources required to sue render the ADA a “chronically under-enforced statute.” The US government is also more than twice as likely to be sued for violating civil rights as they are to initiate a suit against a violator. This dynamic is part of why legal testers are so important: Those with the resources to initiate suits against violators help prevent further harm to disabled people. Acheson threatened to take away this crucial method of enforcement reaffirmed by Havens, placing the burden of enforcement on overwhelmingly poor and under-resourced disabled individuals. Most disabled Americans simply do not have the time, money, and physical energy required to see through a years-long legal process to sue ADA violators. Because of this, reducing testers would significantly curtail ADA enforcement, thoroughly undermining many of the limited yet hard-won protections that people with disabilities currently enjoy.
When Deborah Laufer sued Acheson Hotels over its ADA violation, the district court dismissed the case on the grounds that Laufer lacked standing to sue because they claimed she did not intend to stay at the inn – a contradiction of Havens as traditionally applied. Julianna Acheson’s legal team and multiple Supreme Court justices insist their reasoning distinguished the case from Havens. Laufer and multiple legal rights organizations disagree that the facts distinguish the case, as explained in a brief from Laufer’s counsel, the Georgetown Institute for Constitutional Advocacy and Protection. Upon appeal, the First Circuit reversed, insisting that lack of intent did not negate the presence of dignitary harm and stigmatizing injury. In response, Acheson Hotels appealed to the Supreme Court. Despite continuing to appeal the case, Acheson Hotels also added the missing accessibility information to the website before selling the inn. (Acheson told the Washington Post she was “unaware” of the Reservation Rule and that it “wasn’t some act of defiance.” The website for an inn she purchased in 2022 is also in violation of the same rule.)
Deborah Laufer, given that the website was now in compliance and because of issues with a lawyer on a different case, offered to withdraw her complaint against Acheson Hotels and asked the US’ highest court for a dismissal. Though the SCOTUS opted to take the case, in oral arguments, multiple justices asked during oral arguments why they should not dismiss the case for mootness given Laufer’s dismissal request and the inn’s subsequent compliance with the Reservation Rule after the complaint was brought. Adam G. Unikowsky, the lead attorney representing Acheson Hotels and a contributor to the Federalist Society, appealed the lower court’s ruling on the basis that Laufer lacked standing to sue. He maintained that no dignitary harm truly occurred because the harm was purposefully self-inflicted and did not “physically” prevent her from entering the hotel.
The SCOTUS ultimately decided to dismiss Acheson Hotels LLC v. Laufer as moot. They noted that they were “sensitive to Acheson’s concern” about litigants abandoning cases to evade their review. However, the decision authored by Justice Amy Coney Barrett states that the justices were confident that this was not Laufer’s intent in Acheson, citing the lower court’s sanctioning of Laufer’s original attorney, Tristan Gillespie, and Laufer’s subsequent withdrawal of other pending ADA cases. The opinion also noted that Laufer has “disavowed the intention to file any more ADA suits.”
While all parties ultimately sought to have the case dismissed, each hoped to see a different rationale from the Court for the dismissal. Unikowsky, on behalf of Acheson Hotels, wanted the dismissal to be based on Laufer and other testers lacking standing to sue. Disability advocates had hoped to see a dismissal accompanied by a full-throated reiteration of testers’ standing to sue in this and similar cases. Laufer, meanwhile, had already withdrawn her complaint and had asked the SCOTUS to dismiss the case as moot. The Court ultimately granted Laufer’s request without ruling on the issue of standing.
Though the SCOTUS opted to sidestep the issue of tester standing in their Acheson ruling, they unambiguously left the door open for future litigants to use Unikowsky’s playbook. In writing the decision, Justice Amy Coney Barrett states, “We emphasize, however, that we might exercise our discretion differently in a future case.” The opinion concludes by noting their refusal to consider leaving the First Circuit’s opinion in place, which would shut the door to future attacks on tester standing, as recommended by Justice Ketanji Brown Jackson.
Justice Clarence Thomas goes even further in his concurrence, effectively endorsing Unikowsky’s argument by saying he “would not dismiss this case as moot” as he “conclude[s] that Laufer lacks standing” to sue under the ADA. Justice Thomas also implicates future cases in his concurrence by declaring that “whether Laufer has standing to bring her Reservation Rule claims is a recurring question that only this Court can definitively resolve.” Justice Thomas simultaneously maintains that Havens has no bearing on ADA testers’ standing because Havens concerned a different Act, and that testers more broadly lack standing by definition because they do not personally plan to use the particular service in question. Justice Thomas characterizes the tester as a “private attorney general”, and asserts that “lack of intent” to book a room “eviscerates any connection to… purported legal interest in the accessibility information required by the Reservation Rule.” Despite Justice Thomas’ earlier assertion otherwise, his specific invocation of the need to establish intent represents a clear break with the Havens precedent that solidified a role for testers in civil rights enforcement.
The restrictive view of standing that Justice Thomas articulates, alongside the open-ended wording of the Court’s dismissal based on mootness and its refusal to uphold the First Circuit ruling, potentially casts the Acheson decision as an ominous deferral rather than a win. As a brief by a former member of Deborah Laufer’s legal team, Thomas B. Bacon, puts it, if Laufer’s legal opponents prevail in similar future cases, a crucial component to decades of civil rights law precedent “would be effectively nullified.”
Dismissal for mootness was already the presumed outcome, but the future is still uncertain. Many hoteliers like Acheson and, more importantly, at least one conservative Justice, have demonstrated hostility towards tester rights (and towards individual prolific testers “like Laufer”). Though Acheson’s team insists that they do not object to all testers, they exhibit clear contempt for testers nevertheless. Acheson’s team opines that hotels like Acheson’s “should not have to pay thousands of dollars in attorney’s fees based on their alleged failure to strictly comply with a regulation they may have never heard of,“ minimizing both the role of tester lawsuits and the importance of the statute with which Acheson failed to comply. Acheson’s team also characterizes Laufer’s suit as a “plan to visit a website for the purpose of being offended by it.” Justice Thomas argues that by dismissing this case as moot rather than on the basis of standing, “we have needlessly invited litigants to follow Laufer’s path to manipulate our docket”. These comments are clearly meant to evoke a sense of cunning or trickery and dispel any idea that Laufer and other testers like her are intelligent and oppressed people who simply seek to remedy civil rights violations. Laufer’s counsel’s brief firmly states that “Acheson’s villainization of Title III testers,” based on the idea that they “abuse” the ADA, is “factually wrong and legally irrelevant.”
Without a firm reassertion of Havens’ broad applicability, the dismissal based on mootness leaves the door open for future attacks on testers’ standing to sue. This prospect is clear from both the majority opinion and the multitude of pro-Acheson amici briefs from business organizations with a financial stake in weakening the ADA, such as the Restaurant Law Center and National Homebuilders Association. These briefs refer to Laufer as a “serial filer” rather than a civil rights tester, and repeatedly put the word tester in quotes to question the validity of civil rights testing. Justice Ketanji Brown Jackson acknowledged during oral arguments the danger this possibility may pose for civil rights testing in general. As Justice Kentanji Brown Jackson pointed out during oral arguments and in her concurrence, other nondiscrimination laws – e.g., race-, gender-, and age-based – can also suffer blows from litigation based on the Acheson template. Several civil rights organizations expressed similar concerns in their friend-of-the-court briefs. The worst-case scenario in a future suit would be a majority opinion that rejects testers’ standing to sue and outright overturn Havens. The more likely, still-terrible outcome would distinguish from Havens in name, but would restrict its applicability in a way that nevertheless rejects testers’ standing to sue based on “intent” to use a service or accommodation. Beyond jeopardizing testers, it would burden disabled people more generally with the difficult task of proving their intentions every time they wished to enforce their rights in court. This would jeopardize the civil rights of disabled people and other groups whose protections rely on litigation-based enforcement schemes.
Unikowsky’s stated aim in this case was to establish “a template” to deter testers like Laufer from “filing large numbers of lawsuits” and “abandoning them at the last minute.” He clearly mischaracterized Laufer’s request for dismissal on mootness as a nefarious plan. However, the greater threat from cases like Acheson is that they may provide a template for violators to evade civil rights enforcement. As an American Civil Liberties Union (ACLU) friend-of-the-court brief asserts, “Guaranteeing equal dignity was an animating purpose of the statute’s [Civil Rights Act of 1964] other antidiscrimination protections.” The ACLU concludes that both the Civil Rights Act and the ADA grant “a personal legal right to be free from the intangible harms of discrimination.” Laufer certainly did not experience tangible or economic harm from the inn, but she did experience an intangible form of discrimination incompatible with guarantees of equal dignity. Another brief by antidiscrimination law scholars asserts that differences in booking constitute “concrete” harms. They rejected the reasoning in Acheson’s “template,” which relies on dismissing or minimizing claims of intangible harm – in this case, arguing that Laufer did not experience dignitary harm. Setting a precedent for suits to require tangible harm could disastrously heighten the barrier to pursuing civil rights litigation. Notwithstanding Acheson’s dismissal, arguments by the hotel’s legal team should alert policy professionals to the ascendance of legal strategies crafted to hinder civil rights enjoyment and enforcement.
Several arguments made by Acheson Hotels raise alarms. Acheson Hotels attorney Unikowsky specifically argues that even if Laufer withdrew the case, she may sue again, and if she doesn’t, someone else might sue for something similar. (Again, lawsuits are a primary enforcement mechanism for the ADA.) Unikowsky’s argument highlighted the potential for this case to set a dangerous precedent. In oral arguments on October 4, Unikowsky argued the Court can (and should) partly base legal standing to sue on perceived intent to use a service. The Georgetown Institute for Constitutional Advocacy and Protection insists in an amicus brief that this argument should be “foreclosed” entirely by Havens. Both the official opinion and Justice Thomas’ concurrence imply that in a future non-moot case, they would rule against tester standing. Taken to its logical endpoint, such a ruling would bolster the ability of de facto ADA violators to avoid enforcement by casting doubt on the “intentions” of plaintiffs whose rights are violated.
Unikowsky’s legal reasoning on behalf of Acheson Hotels, if it prevails in a future case, would pose an existential threat to the essential work done by civil rights testing organizations by narrowing the definition of a legitimate tester. Tester organizations like the Equal Rights Center expose violations of civil rights laws that outlaw discrimination based on protected classes like disability, race, and age. Removing the legal standing of testers to sue would void the existence of such organizations, in turn hindering the ability of marginalized, under-resourced Americans to sue for civil rights violations.
Unikowsky also argues that these lawsuits take up an unreasonable share of judicial resources because they are filed in such large numbers only to be settled (as part of the petitioner’s legal strategy). While this legal strategy is resource-intensive by nature, there is limited recourse for Title III ADA enforcement by citizens. That an attorney can argue against such a significant mode of enforcement for the ADA presents the possibility of other conservatives making the same argument in order to dismantle this recourse—and this deterrent—for civil rights violations.
It is unlikely that Unikowsky and his colleagues are truly concerned about the supposed waste created by what they imply are frivolous lawsuits. In reality, Acheson is just the latest in a series of attempts to upend civil rights and legal protections through an increasingly reactionary Supreme Court. It joins recent cases like Moore v. Harper and Marion County v. Talevski as well as Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard wherein right-wing organizations or individuals aggressively and strategically challenge civil rights and anti-discrimination policies through the Supreme Court. Many of these suits have ties to influential far-right political groups like the Alliance Defending Freedom, the Federalist Society, and the Council on National Policy. Despite varying outcomes for these cases, the harsh reality is that legal arguments predicated on radical conservatism ascended to the nation’s highest court – and justices have written opinions or dissents displaying intent to upend basic civil rights. This reality is not softened by occasional rulings in favor of disability rights, like the decision in favor of the Deaf complainant of Perez v. Sturgis, which resemble dodged bullets more than decisive victories. Regardless of the Court’s decision in Acheson, the case is a symbolic and material manifestation of attacks on the few safeguards that protect everyday Americans from increasingly powerful reactionary political actors.
A future ruling on standing could wreck tester rights. The Court’s opinion, Clarence Thomas’s concurrence, and panicked legal briefs from organizations supporting Laufer make this clear. Policy professionals must prepare for this likelihood and adjust policy priorities to combat its potential effects.
Disabled people comprise at least a quarter of society. They are workers, renters, parents, students, friends, and family members; more than that, they are people. The US’ disabled population also appears to be growing alongside the ongoing COVID-19 pandemic. All of this means that not just preserving but expanding the right to integrated public spaces – and the information needed to access them – should be a vital mission for all policy professionals.
Further, cases like Acheson have implications for labor and education rights: Legal arguments used to attack Title III can be translated into arguments against Title I (nondiscrimination in employment) and Title II (nondiscrimination in state and local government programs). Weakened disability employment protections easily translate into weaker overall labor protections, including safeguards against employment-related debility.
The Acheson case also has implications for housing accessibility and policy. A 2019 report from the Equal Rights Center found significant accessibility barriers for blind testers using online housing search and application sites. Their testers found that 72-80% of sites had “substantially different or undetectable information” on rentals and 81% of rental applications were completely inaccessible to those using screen readers. The arguments put forward by Unikowsky in Acheson and echoed by Justice Thomas would render rights-testing organizations unable to litigate blatant yet “intangible” civil rights violations from the ADA to the Civil Rights Act. It could also prevent well-resourced individual testers like Laufer from bringing suit. In that event, policy protections that rely on litigation for enforcement may become even more toothless.
Worse still, Acheson may become a template for cynical violators to shirk responsibility by claiming a protected person had no true intention to utilize their services, as highlighted by the ACLU et al. in their friend-of-the-court brief. This potential argument could upend most civil rights suits for intangible injuries; suing for discrimination in housing, employment, education, or even public business patronage before a paper trail begins could become impossible.
The response to these threats must not rely solely on the judicial system, and should instead involve further legislation at the federal, state, and local levels. One of the key lessons from the downfall of Roe v. Wade is that cherished civil liberties must be supported by more than just federal legal precedent, because federal legal precedent is always one ruling away from being overturned.
One way to shore up disability protections would be to create additional enforcement mechanisms, rather than relying solely on litigation over individual infractions. New policies could mandate fines, shutdowns, or other regulatory enforcement actions. At the federal level, these could involve granting additional agency powers to enforce disability protections. This would be similar to the way the Environmental Protection Agency is empowered to take civil administrative action to enforce environmental regulations. Such enforcement needn’t preclude individuals from also filing their own suits. The Protecting the Right to Organize (PRO) Act, for example, contains provisions that would both give the National Labor Relations Board the power to enforce its own orders related to the National Labor Relations Act (NLRA), while also allowing individuals to file their own civil suits related to the NLRA. Lawmakers could also convert what are currently civil infractions into criminal ones, thereby giving justice departments at all levels of government the go-ahead to pursue these cases.
Like many of the civil rights protections in the US, the current disability rights framework—both in substance and in enforcement—should be considered the floor, not the ceiling. Ultimately, disability protections would function better by supplanting the accommodations framework with universal design requirements. While accommodations ultimately work to retrofit ableist systems so that they haphazardly include disabled people, universal design proactively takes into account a wide variety of needs and works to meet them as inclusively as possible.
Finally, the right-wing takeover did not happen overnight; it is the product of decades of effort by right-wing activists who saw the courts as the best way to implement an agenda that would not appeal to the majority of voters. Progressive lawmakers have a lot of catching up to do, but they can start by establishing their own judicial pipelines and making court appointments at all levels a priority. The maxim “personnel is policy” must be diligently applied to the judiciary, and not just for the justices on the SCOTUS. That said, progressive lawmakers should also be entertaining bold moves to reclaim the judiciary from the far right in the near term, such as increasing the number of SCOTUS justices.
The Acheson decision may have spared ADA enforcement in the short run, but it’s clear that the rights of disabled people remain precarious. Conservatives have been remarkably successful in seating jurists who share their hostility toward private citizens who sue to enforce civil rights. This has encouraged people like Unikowsky and powerful right-wing groups like the Council on National Policy to advance ambitious legal arguments that substantively undermine civil rights protections.
Prioritizing disability rights inherently protects intertwined racial, gender, and economic rights, and vice-versa. Rather than serving as a backstop to protect these hard-won rights, the SCOTUS’ conservative majority has tended to side with those looking to undermine and dismantle these protections. Strong policy protections and vigilance regarding judicial overreach are crucial to defend against the ongoing legal barrage. Civil rights cannot capitulate to profiteers or conservative sensibilities. Our individual and collective futures depend on it.
