National Federation of the Blind, et al v. Arizona Board of Regents, et al

Filing 26

ANSWER to 1 Complaint, by Arizona Board of Regents, Arizona State University.(Hudson, Lisa)

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1 2 3 4 5 6 7 TERRY GODDARD Attorney General Lisa K. Hudson, 012597 Alisa Blandford, 022901 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7673 Telephone: (602) 542-7687 Fax: (602) 542-7644 Lisa.Hudson@azag.gov Alisa.Blandford@azag.gov 8 Attorneys for Defendants 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF ARIZONA 12 13 14 The NATIONAL FEDERATION OF THE BLIND, The AMERICAN COUNCIL OF THE BLIND, and DARRELL SHANDROW, Case No: CV09-01359 GMS ANSWER Plaintiffs, 15 16 vs. 17 The ARIZONA BOARD OF REGENTS and ARIZONA STATE UNIVERSITY 18 (Assigned to Honorable G. Murray Snow) Defendants. 19 20 21 22 For their Answer, Defendants Arizona Board of Regents (ABOR) and Arizona State University (ASU) admit, deny, and allege the following: 1. Answering paragraph 1, Defendants admit and allege that they have 23 entered into a limited agreement to pilot the Kindle DX in three sections of one class 24 over two semesters. Defendants deny the remaining allegations. 25 2. Defendants admit that allegations in paragraphs 2 and 3, except Defendants 26 deny that Plaintiff Shandrow has standing. Defendants are moving to dismiss Plaintiff 27 Shandrow’s claims. 28 1 3. Answering paragraph 4, upon information and belief, Defendants admit 2 that Plaintiff National Federation of the Blind (NFB) is a non-profit corporation. 3 Defendants are without sufficient information to form a belief as to the truth of the 4 remaining allegations and therefore Defendants deny them. 5 4. Answering paragraph 5, upon information and belief, Defendants admit 6 that Plaintiff American Council of the Blind (ACB) is a non-profit corporation. 7 Defendants are without sufficient information to form a belief as to the truth of the 8 remaining allegations and therefore Defendants deny them. 9 5. Answering paragraph 6, Defendants admit that Plaintiff Shandrow is a 10 student at the Walter Cronkite School of Journalism and Mass Communication at ASU. 11 Defendants also admit that Plaintiff Shandrow is blind and is substantially impaired in 12 the major life activity of seeing. Defendants are without sufficient information to form a 13 belief as to the truth of Plaintiffs’ allegation that Plaintiff Shandrow is a member of the 14 ACB and therefore Defendants deny the allegation. Defendants further deny that 15 Plaintiff Shandrow has standing to bring these claims. 16 6. Answering paragraph 7, Defendants admit and allege that ABOR was 17 created by the Arizona Constitution and that pursuant to Constitution and Arizona 18 statute, it has control over Arizona’s three state universities, including ASU. Defendants 19 admit that ABOR is a public entity pursuant to Title II of the ADA. Defendants deny 20 any remaining allegations. 21 7. Answering paragraph 8, Defendants admit that ASU is a public university 22 with campuses in several locations within Arizona. Defendants deny that ASU is a jural 23 entity and therefore deny any remaining allegations. 24 8. Defendants admit the allegations in paragraph 9. 25 9. Answering paragraph 10, upon information and belief, Defendants admit 26 27 that plaintiffs have set forth a reasonable description of an “electronic book” (e-book). 10. Defendants admit the allegations in paragraph 11. 28 2 1 11. Answering paragraph 12, Defendants admit that the Kindle is a device that 2 permits users to read e-books. Defendants admit that the Kindle renders e-books into 3 visible text on electronic paper to simulate the experience of reading a print book. 4 12. Answering paragraph 13, Defendants admit that blind students could 5 access the text-to-speech function of the Kindle DX if the Kindle menus were accessible 6 to the blind. Defendants deny the allegation that this would provide blind students 7 “access to the same content as signed students through the same device.” Defendants 8 allege, on information and belief, that not all authors and/or publishers have permitted 9 Amazon to offer the text-to-speech option. In that case, blind students would still 10 require access to the materials on another device. Defendants deny the remaining 11 allegations. 12 13 14 13. Defendants admit, on information and belief, that paragraph 14 accurately describes the Kindle DX device. 14. Defendants admit, on information and belief, that paragraph 15 accurately 15 describes how e-books are displayed on the Kindle DX device. Defendants admit that 16 the Kindle DX’s screen auto-rotates to permit users to view text in either portrait or 17 landscape mode. 18 15. Answering paragraph 16, on information and belief, Defendants admit that 19 the Kindle DX has an internal wireless modem. Defendants admit that a Kindle user can 20 purchase an e-book by downloading it directly onto the Kindle device. Defendants 21 allege, upon information and belief, that books can be accessed and downloaded to the 22 Kindle device through other methods. Defendants deny the remaining allegations. 23 16. Answering paragraph 17, on information and belief, Defendants admit that 24 the Kindle DX does more than simply download, store, and retrieve books. Defendants 25 admit that the Kindle DX has a keyboard that can be used to take notes. 26 27 28 3 1 17. Answering paragraph 18, Defendants admit that the Kindle DX has 2 functions that permit users to highlight text, look up the definition of words, and search 3 across a given library. 4 18. Answering paragraph 19, upon information and belief, Defendants admit 5 that the current Kindle DX software does not have an audio option for menus. 6 Defendants deny all remaining allegations. 7 19. Answering paragraph 20, upon information and belief, Defendants admit 8 that Amazon is promoting the use of the Kindle DX in the textbook market. Defendants 9 are unable to admit or deny whether publishers representing sixty percent of the textbook 10 market have agreed to make their textbooks available through the Kindle Store and 11 therefore Defendants deny the allegations. 12 20. Answering paragraph 21, Defendants admit and allege that in a May 6, 13 2009 press release, Amazon announced that five (not six) academic institutions would 14 launch trial programs to make Kindle DX devices available to students in the fall of 15 2009. Defendants admit that in the May 6, 2009 press release, Amazon listed the 16 features Plaintiffs allege in addition to others. Defendants admit that the quoted text is in 17 the Amazon press release. Defendants deny the remaining allegations. 18 21. Answering paragraph 22, Defendants admit and allege that ASU is one of 19 the participants in the pilot. Defendants allege, on information and belief, that there are 20 now seven participants. Defendants deny the remaining allegations. 21 22. Answering paragraph 23, Defendants admit that ASU employee Adrian 22 Sannier wrote that “I’m pumped to work with Amazon and to see how the Kindle can 23 help the University accelerate the adoption of electronic textbooks into a variety of 24 courses.” Defendants deny all remaining allegations. 25 23. Answering paragraph 24, Defendants admit and allege that Adrian Sannier 26 wrote the quoted text. Defendants deny the implicit allegation that the Kindle pilot 27 program involves courses other than the Human Event. 28 4 1 2 3 4 5 24. Defendants deny the allegations in paragraph 25. The Kindle pilot is limited to one course in the Barrett Honors College. 25. Answering paragraph 26, Defendants admit that Adrian Sannier wrote the quoted text. Defendants deny that this statement was trumpeted. 26. Answering paragraph 27, Defendants admit that Adrian Sannier wrote that, 6 “Electronic texts provide the capabilities that today’s students have come to expect— 7 they’re searchable, flexible, easy to annotate, and less expensive than traditional texts.” 8 9 10 11 12 27. Defendants deny the allegations in paragraph 28. No blind students are participating in the pilot course. 28. Defendants deny the allegations in paragraph 29, as there are no blind participants in the Kindle pilot. 29. Defendants deny the allegations in paragraph 30, as there are no blind 13 participants in the Kindle pilot. Defendants admit that publishers can provide books in 14 electronic format and allege that ASU’s Disability Resource Center (DRC) has received 15 very timely responses to requests for electronic files in many cases. Defendants admit 16 and allege that different publishers provide information in different formats, some of 17 which are immediately accessible to the blind student, and others that require additional 18 work by DRC. Defendants deny Plaintiffs’ allegation that DRC destroys student books 19 in order to scan them into an electronic format. Defendants allege that DRC purchases 20 its own copy of the book for this purpose. Although the student must purchase the book 21 for copyright purposes, the student’s hard copy of the book is not destroyed. Defendants 22 further deny that DRC provides students with scanned material that does not provide 23 structural data. Defendants admit that blind students can obtain audio-taped versions of 24 books. Defendants deny the allegation and implicit suggestion that audio books are 25 difficult to use due to the lack of skill of the reader. Defendants allege that DRC is able 26 to find recorded audio books from organizations that seek out qualified readers for their 27 texts. In other words, if it is a medical book with difficult terminology, the organization 28 5 1 will find a professional familiar with that terminology. Defendants further allege that 2 most students prefer an electronic version of the book to audio tapes. Defendants deny 3 the implicit suggestion in paragraph 30 that the Complaint lists all sources of accessible 4 materials for the blind. Defendants further allege that the Complaint exaggerates the 5 difficulty of obtaining materials and that it exaggerates issues of quality of those 6 materials. Defendants deny all other allegations not specifically admitted. 7 30. Answering paragraph 31, Defendants admit that DRC informs students that 8 conversion of materials can be time consuming and can take months to complete. 9 Defendants also admit that students are encouraged to enroll in courses during Priority 10 Enrollment to insure that they will have materials in a timely manner. Defendants deny 11 the implicit allegation that DRC always requires months to convert or obtain accessible 12 materials. Many texts and materials used in the university can be obtained in a matter of 13 days, and some can be obtained for free and immediately via the internet. Defendants 14 deny the remaining allegations. 15 31. Defendants admit that paragraph 32 quotes the DRC but deny the implicit 16 allegation that DRC encourages students to learn how to obtain accessible texts on their 17 own due to workload issues in DRC. In fact, DRC encourages students to learn how to 18 obtain accessible materials on their own because they will require this skill when they 19 leave school and enter the workforce. Offices such as the DRC will not always be 20 available to them. Defendants deny the remaining allegations. 21 32. Defendants deny the allegations in paragraph 33. Defendants admit that 22 students are informed that they can discuss the possibility of a reduced reading load, but 23 deny that the suggestion is made due to the timeliness and quality of DRC-provided 24 materials. 25 33. Answering paragraph 34, Defendants admit that a Reading Rights 26 Coalition representative wrote to ASU President Michael Crow on or about May 7, 2009. 27 The letter speaks for itself, but generally threatened litigation if ASU did not terminate 28 6 1 the pilot project. The letter offered no middle ground or invitation to work with the 2 University on other accommodations. Defendants deny the remaining allegations. 3 34. Answering paragraph 35, Defendants admit that a Reading Rights 4 Coalition representative contacted the office of the General Counsel more than once 5 about the pilot program. Defendants deny the suggestion that Plaintiffs’ 6 communications invited any real discussion of possible resolutions. Plaintiffs made it 7 clear that they were only interested in stopping ASU’s participation in the Kindle pilot. 8 9 10 35. Answering paragraph 36, Defendants admit that they did not agree to stop participation in the pilot but deny Plaintiffs’ implicit allegation that ASU is not concerned about accessibility. 11 36. Defendants deny the allegations in paragraphs 37, 38, and 39. 12 37. Answering paragraph 40, upon information and belief, Defendants admit 13 that this assertion appears to be an accurate summary of information included on NFB’s 14 web site. Defendants are without sufficient information to form a belief as to the truth of 15 the allegations and therefore Defendants deny them. 16 38. Answering paragraph 41, upon information and belief, Defendants admit 17 that NFB has made this assertion on its web site. Defendants are without sufficient 18 information to form a belief as to the truth of the allegations and therefore Defendants 19 deny them. 20 39. Answering paragraph 42, upon information and belief, Defendants admit 21 that this assertion appears to be an accurate summary of information included on NFB’s 22 web site. Defendants are without sufficient information to form a belief as to the truth of 23 the allegations and therefore Defendants deny them. 24 25 26 27 40. Answering paragraph 43, Defendants are without sufficient information to form a belief as to the truth of the allegations and therefore Defendants deny them. 41. Answering paragraph 44, upon information and belief, Defendants admit that this assertion appears to be an accurate summary of information included on ACB’s 28 7 1 web site. Defendants are without sufficient information to form a belief as to the truth of 2 the allegations and therefore Defendants deny them. 3 4 5 42. Answering paragraph 45, Defendants are without sufficient information to form a belief as to the truth of the allegations and therefore Defendants deny them. 43. Answering paragraph 46, upon information and belief, Defendants admit 6 that this assertion appears to be an accurate summary of information included on ACB’s 7 web site. Defendants are without sufficient information to form a belief as to the truth of 8 the allegations and therefore Defendants deny them. 9 44. Defendants deny the allegations in paragraphs 47, 48, 49, and 50. 10 45. Answering paragraph 51, 52, 53, 54, and 55, Defendants deny that they 11 have engaged in any discrimination. Defendants admit that NFB has devoted some 12 resources to trying to stop ASU’s participation in the pilot, but deny that such action was 13 reasonable or necessary to further the interests of its members. Defendants have not 14 discriminated against any blind students. Defendants deny the remaining allegations. 15 46. Answering paragraph 56, Defendants deny that they have engaged in any 16 discrimination. Defendants are without sufficient information to form a belief as to the 17 truth of Plaintiffs’ assertion of their membership and therefore Defendants deny the 18 allegation. 19 47. Answering paragraph 57, Defendants deny that they have engaged in any 20 discrimination. Defendants deny that any blind or visually impaired individuals have 21 been prevented from enrolling or participating in the Human Event, the only course at 22 ASU that will participate in the Kindle DX pilot. Defendants deny all remaining 23 allegations. 24 48. Defendants deny the allegations in paragraphs 58 and 59. 25 49. Answering paragraph 60, Defendants deny that they have engaged in any 26 discrimination. Defendants deny that the Kindle DX pilot has caused dignitary harm to 27 Plaintiff Shandrow. Defendants deny that the Kindle DX pilot has excluded any blind or 28 8 1 otherwise disabled individuals. Defendants deny that their actions have stigmatized 2 Plaintiff Shandrow. Defendants affirmatively allege that Plaintiff Shandrow lacks 3 standing to bring this lawsuit because he is not a student in the Barrett Honors College. 4 Defendants deny all remaining allegations. 5 6 7 ANSWER TO FIRST CLAIM FOR RELIEF 50. Paragraph 61 incorporates Plaintiffs’ previous allegations. Defendants incorporate their responses to those allegations. 8 51. Defendants admit the allegations in paragraph 62. 9 52. Answering paragraph 63, Defendants deny that the Kindle pilot is a 10 11 program or activity as that term is used in the Rehabilitation Act. 53. Answering paragraph 64, Defendants admit that the currently-available 12 version of the Kindle DX is not accessible to blind individuals without the assistance of a 13 sighted person. Defendants allege that there are a number of other devices on which 14 blind individuals can access e-books without personal assistance. Defendants deny the 15 remaining allegations, 16 54. Answering paragraph 65, Defendants deny that they have violated the 17 Rehabilitation Act. Defendants deny that they have excluded blind individuals from the 18 Human Event courses that will pilot the Kindle or that they have denied any blind 19 individual the benefits of the Human Event course. Defendants deny that they have 20 engaged in any discriminatory actions or conduct. Defendants deny all remaining 21 allegations. 22 23 24 55. Answering paragraph 66, Defendants deny that they have engaged in any discrimination. Defendants deny all remaining allegations. 56. Answering paragraph 67, Defendants deny that they have engaged in any 25 discriminatory actions or conduct. Defendants deny that they have harmed Plaintiffs 26 NFB, ACB, or Shandrow. Defendants deny all remaining allegations. 27 28 9 1 2 3 ANSWER TO SECOND CLAIM FOR RELIEF 57. Paragraph 61 incorporates Plaintiffs’ previous allegations. Defendants incorporate their responses to those allegations. 4 58. Defendants admit to the allegations in paragraphs 69. 5 59. Answering paragraph 70, Defendants deny that the Kindle pilot is a 6 service, program or activity as that term is used in the statute. Defendants also deny 7 Plaintiffs’ allegations that blind students have been excluded from participating in the 8 Human Event course, including those sections that will pilot the Kindle. 9 60. Answering paragraph 71, Defendants admit that the currently-available 10 version of the Kindle DX is not accessible to blind individuals without the assistance of a 11 sighted person. Defendants allege that there are a number of other devices on which 12 blind individuals can access e-books without personal assistance. Defendants deny any 13 remaining allegations. 14 61. Answering paragraph 72, Defendants deny that they have violated Title II 15 of the ADA. Defendants deny that they have excluded blind individuals from the 16 Human Event courses piloting Kindle or have denied any blind individual the benefits of 17 the Human Event course. Defendants deny that they have engaged in any discriminatory 18 actions or conduct. Defendants deny all remaining allegations. 19 20 21 62. Answering paragraph 73, Defendants deny that they have engaged in any discriminatory actions or conduct. Defendants deny all remaining allegations. 63. Answering paragraph 74, Defendants deny that they have engaged in any 22 discriminatory actions or conduct. Defendants deny that they have harmed Plaintiffs 23 NFB, ACB, or Shandrow. Defendants deny all remaining allegations. 24 64. 25 26 27 28 Defendants deny all remaining allegations not specifically admitted. AFFIRMATIVE DEFENSES For their separate and additional defenses, Defendants, without conceding that they bear the burden of proof or persuasion as to any of them, allege as follows: 1. Plaintiffs have failed to state a claim upon which relief can be granted. 10 1 2. Plaintiff Shandrow is not a qualified individual with a disability. 2 3. Plaintiffs can not prove intentional discrimination by Defendants. 3 4. Defendants acted for legitimate, non-discriminatory reasons. 4 WHEREFORE, having fully answered Plaintiffs’ Complaint, Defendants request 5 6 7 that this matter be dismissed, that they be awarded their costs incurred herein and such other and further relief as the Court deems just and proper, including attorneys’ fees under 42 U.S.C. § 1988. 8 9 Respectfully submitted this 24th day of July, 2009. Terry Goddard Attorney General 10 11 s/ Lisa K. Hudson__________ Lisa K. Hudson Assistant Attorney General Attorney for Defendants 12 13 14 15 16 17 18 19 20 21 I certify that I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following, if CM/ECF registrants, and mailed a copy of same to any non-registrants, this this 24th day of July, 2009 to: 22 23 24 25 26 27 28 11 1 2 3 4 5 6 7 8 Andrew S. Friedman Guy A. Hansen BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2901 North Central Avenue, Suite 1000 Phoenix, AZ 85012 Daniel F. Goldstein Mehgan Sidhu BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore St., Suite 1700 Baltimore, MD 21202 Amy Robertson FOX & ROBERTSON, P.C. 104 Broadway, Suite 400 Denver, CO 80203 9 10 Eve Hill 1667 K St. NW, Suite 640 Washington, DC 20006 11 Attorneys for Plaintiffs 12 13 14 s/ Chris Austin Secretary to Lisa K. Hudson 15 16 511219 17 18 19 20 21 22 23 24 25 26 27 28 12

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