by Mitch Pomerantz

In my March column, "A First Step Toward E-Book Reader Accessibility," I discussed the settlement of our joint lawsuit with the NFB against Arizona State University. Over the past few years, the American Council of the Blind has been involved in successful litigation against both the United States Treasury Department and the Social Security Administration. Outside of the courtroom but still within the legal arena, our structured negotiations efforts ably led by Lainey Feingold and Linda Dardarian have resulted in settlements with a score of corporations to improve accessibility for blind and visually impaired persons.

More personally, this past Monday (March 22nd), I was deposed by an attorney -- a blind woman, by the way -- representing a local independent living center in a lawsuit filed against my former employer, the city of Los Angeles, alleging that the city's emergency preparedness planning document inadequately addresses the needs of people with disabilities. And yesterday (as I began this), Donna and I met with attorneys from the L.A. County Metropolitan Transportation Authority (Metro) regarding a pending lawsuit filed against that agency by the estate of a blind gentleman fatally injured when he mistook the gap between light rail cars for the door into one of those cars. If all this direct involvement with lawyers wasn't enough to get me thinking about the legal process as a means of furthering ACB's advocacy agenda, I recently engaged in a spirited debate on a general California disability list over another lawsuit against Metro which had just been settled and about which I had expressed serious reservations.

Before going further, I want to make it clear that I am not an attorney, although I attended law school for a brief time during the mid-'90s. My comments and opinions are based entirely on my nearly 14 years in a job where I was required to interpret and implement the Americans with Disabilities Act (ADA) and prior to that time, positions which necessitated my understanding of federal and California employment laws. As an advocate for almost 40 years, I've gained a thorough knowledge of other disability-rights statutes such as the Rehabilitation Act. Hence, while many of you may challenge what I'm about to share, my views are predicated on a fair amount of personal and professional, albeit non-legal experience.

By almost any measure and from just about every reliable authority, America is regarded as the most litigious nation in the world. Trial lawyers, the individuals who file these suits, are extremely effective and powerful advocates in their own right. The only evidence you need is the fact that every major legislative initiative aimed at tort reform (regulating and/or limiting civil suits) has gone down in flames in Congress. Let me make it clear that while I believe abuses exist in the filing of some class action suits, far more serious legal abuses have been perpetrated by corporate and government interests on a regular basis.

Nonetheless, for a decade or more I've voiced concerns about how many so-called frivolous lawsuits were being filed, particularly those involving disability-related claims. Such claims, while a relatively small percentage overall, are typically filed on very questionable legal grounds (e.g., that the ADA is a preferential treatment rather than an equal access statute). These suits, along with what I refer to as "serial litigation" (suits filed against several commercial entities in a specific area), have drawn the ire of chambers of commerce around the country and led to a number of unsuccessful (so far) attempts to enact ADA notification statutes in Congress and similar legislation on the state level.

The question is, when and under what circumstances should ACB as an advocacy organization working for the rights of blind and visually impaired people take our fight to the courthouse? At the outset, I mentioned our tremendous success in using structured negotiations to obtain automated teller and point-of-sale machines, web sites, and materials in alternate formats. For those in need of a quick refresher course: structured negotiations is an alternative to litigation which focuses on collaboration and solution. It commences with a "demand letter" outlining the alleged violations under the pertinent state and/or federal statutes and requesting an opportunity to negotiate a mutually satisfactory settlement to resolve those violations.

The process has worked exceedingly well in addressing claims of discrimination under Title III of the ADA, the title dealing with public accommodations (primarily commercial establishments). In my opinion, structured negotiations would not be effective in addressing discrimination under either Title II of the ADA, the title covering state and local government entities, or the Rehabilitation Act. The kind of blatant and systemic non-compliance with the Rehab Act demonstrated by Social Security and the U.S. Treasury required legal action in the federal courts to address once and for all. We would not have achieved our ultimate goals and victories in either of these cases through the structured negotiations process.

This July will mark the 20th anniversary of the signing of the ADA. The Rehab Act was passed in 1973, although the implementing regulations took until 1978 to be drafted. The zealous pursuit of litigation by some disability rights advocates is certainly understandable, resulting as it has from the perception that there has been widespread nose-thumbing toward these laws by the private sector, state and local government entities, and the federal government itself. The American Council of the Blind has never entered into litigation lightly. We will use structured negotiations and other means short of actual litigation to attain full and equal access when feasible, and argue in the courtroom to achieve our rights as blind and visually impaired people when absolutely necessary. I feel confident that this organization and its members will be wise enough to use all of the legal tools at our disposal and savvy enough to know when and where to use them.