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