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

Filing 28

RESPONSE to Motion re 2 MOTION for Preliminary Injunction and Memorandum in Support Thereof Defendants' Opposition to Motion for Preliminary Injunction filed by Arizona Board of Regents, Arizona State University. (Attachments: # 1 Exhibits 1, 2, 3)(Hudson, Lisa)

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TERRY GODDARD
Attorney General
Lisa K. Hudson, 012597
Alisa A. Blandford, 022901
Assistant Attorney General
1275 W. Washington
Phoenix, Arizona 85007-2997
Telephone: [phone]
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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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,
Plaintiff,

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DEFENDANTS’ OPPOSITION TO
MOTION FOR PRELIMINARY
INJUNCTION

vs.

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Case No: CV09-01359 GMS

The ARIZONA BOARD OF REGENTS
and ARIZONA STATE UNIVERSITY

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(Assigned to Honorable G. Murray Snow)
Defendants.

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Defendants Arizona Board of Regents (ABOR) and Arizona State University

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(ASU) oppose Plaintiffs’ Motion for Preliminary Injunction. ASU has not prevented or

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excluded any blind student from participating in the Human Event classes that will pilot

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Kindle DX, and therefore Plaintiffs cannot establish either success on the merits or the

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likelihood of any irreparable harm. Plaintiff Shandrow has not applied to participate in

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the pilot, and he is not otherwise qualified. The plaintiff organizations will suffer no

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irreparable harm, nor would the requested relief prevent the pilot from continuing in

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other jurisdictions. The balance of equities weighs in favor of ASU, which has already

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entered into an agreement with Amazon, announced and planned for the pilot project,

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has purchased Kindle devices, has registered students, and has notified them of their

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participation. An injunction is also directly contrary to the public interest, as it will

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prevent ASU from testing the Kindle DX in an actual classroom and from providing

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feedback to Amazon on a number of issues, including accessibility for the blind and

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other disabled students.
MEMORANDUM OF POINTS AND AUTHORITIES

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I.

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INTRODUCTION.
The real target of this litigation is not ASU, but Amazon. The plaintiff

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organizations have been trying to convince Amazon to produce the Kindle with

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accessible menus and controls, which ASU certainly does not oppose. Amazon has

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released a statement indicating that they are working on this issue, but have not indicated

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when they expect to release an accessible version. Rather than partner with ASU to

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provide usable feedback to Amazon about the Kindle, Plaintiffs have chosen to try to

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stop progress altogether, regardless of the harm this may cause other students or ASU.

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The ASU course participating in the Kindle DX pilot remains just as accessible to

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blind students as it has been in the past. In previous years, and in those sections not

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participating in the Kindle DX pilot, sighted students obtain course materials through

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printed texts. The Kindle DX is simply a different means for delivering a printed book.

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Blind students already obtain course materials through a variety of other means. Blind

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students will continue to receive course materials as they have in the past. To the extent

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that the Kindle DX is less accessible to blind students, it is no less accessible than the

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printed texts that sighted students would otherwise use.1

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The Kindle DX is probably more accessible than a printed book. If a blind person has
personal assistance moving through the menus to the desired publication, the student can
use the text-to-speech feature, which printed books obviously do not have.
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II.

FACTS.
ASU is one of seven institutions partnering with Amazon to pilot the use of the

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Kindle DX on a limited basis and to provide feedback to Amazon about the experience.

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(Ex. 1 at ¶ 3.) It is, quite simply, an experiment scheduled to last for a single academic

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year. ASU is limiting its participation to a maximum of fifty-eight students enrolled in

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the Human Event. (Ex. 1 at ¶4 & Ex. 2 at ¶ 4.) The Human Event is a two-semester

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course required for, and limited to, students in the Barrett Honors College. (Ex. 2 at ¶2.)

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Students must apply and be accepted to the Barrett Honors College, which chooses

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academically outstanding students. (Id.) Generally, the course explores and discusses

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the classic questions that humankind has wrestled with throughout the ages. (Id.) The

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readings start with ancient texts, such as Homer, and move forward through time over

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the two semesters. (Id.)

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In the fall semester of 2009, ASU is offering forty-seven different sections of the

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Human Event at various times and on a Monday, Wednesday, Friday or Tuesday and

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Thursday schedule. (Ex. 2 at ¶3.) Roughly 900 students will take the class. (Ex. 2 at

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¶3.) Each section will have approximately twenty to twenty-five students. (Id.) ASU

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will pilot the Kindle DX in three sections of this class, each taught by Professor Ted

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Humphrey. (Ex 2 at ¶¶4 & 7.) At this time all three pilot sections are full, and no blind

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students are enrolled (and none sought to be enrolled). (Ex 2 at ¶7.) In fact, no blind

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students have registered in the Barrett Honors College freshman class for the 2009-2010

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academic year. (Ex. 3 at ¶9.)

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Registration materials did not separately list or designate the Kindle DX pilot

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sections. (Ex. 2 at ¶6.) They were open to registration just like any other Human Event

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section. (Id.) Although a few students learned about the pilot and were informed which

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sections were participating, most students did not know that they had registered for a

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pilot course until they received a letter from Dr. Humphrey. (Id.) ASU made no effort

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to screen any disabled students from these sections. (Ex. 2 at ¶8.)

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Participating students will receive a Kindle DX and will obtain course texts on

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their Kindle DX through Amazon. (Ex. 2 at ¶5.) In exchange for receiving the Kindle

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DX device, the students will agree to provide feedback on the experience to ASU and

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Amazon. (Id.) The pilot will continue in the spring semester with the second half of the

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Human Event course, and will involve the same students. (Id.) Professor Humphrey

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will not grade students on their ability to use, or their preference for, the Kindle DX.

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(Ex. 2 at ¶9.)

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ASU’s Disability Resource Center (DRC) was and is fully prepared to

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accommodate any blind students who enroll in a Human Event class using Kindle DX,

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although to date no such students exist and the pilot classes are full. (Ex. 3 at ¶8.) DRC

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can obtain the same texts from the same publisher in either an electronic or hard copy

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format and then can convert it to the student’s preferred delivery method. The texts on

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the reading list do not contain significant charts, graphs, or mathematic and scientific

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symbols and formulas. Thus, these texts can be converted in a matter of days, not weeks

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or months. (Ex. 3 at ¶4.) Blind students can use the same technology that they will need

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for their other courses and thus they will not be required to purchase any additional

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equipment.

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Plaintiffs tout the Kindle DX’s alleged superiority (and hence the supposed unfair

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advantage to sighted students) due to its ability to hold a number of otherwise heavy

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texts, as well as its wireless internet access, which will allow students to instantly look

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up words or connect to sites such as Wikipedia. When it comes to condensing books to

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electronic format, however, blind students are already well ahead of the sighted world.

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Blind students already have a number of electronic devices available to them on which

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they can download searchable electronic versions of multiple books and then convert

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them to speech or to Braille. (Ex. 3 at ¶5.) One example is the Braille notetaker and

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reader. The following web address connects to a video clip, produced by Bookshare

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(another popular source of books for the print disabled), demonstrating this technology.

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http://www.youtube.com/watch?v=fdxL88jXQjE&feature=related . Blind ASU students

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also have the same ability as Kindle users to instantly look up words or to access other

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research sites on the internet. Blind students can access these sources with a laptop

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computer, rather than the Kindle DX. ASU students have access to free wireless internet

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service all over campus. (Ex. 3 at ¶5.)

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In short, the pilot will not harm any students and will potentially help many.
III.

Plaintiffs Cannot Establish Grounds for a Preliminary Injunction.
A plaintiff seeking a preliminary injunction must establish (1) that he is likely to

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succeed on the merits, (2) he is likely to suffer irreparable harm absent relief, (3) the

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balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter

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v. Natural Resources Defense Council, Inc., 129 S.Ct. 365, 374 (2008).

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A.

Plaintiffs are Unlikely to Succeed on the Merits.
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Plaintiff Shandrow Has No Standing.

To establish standing to sue, a plaintiff must demonstrate “a sufficient personal

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stake in the outcome.” Fleck and Assoc., Inc. v. Phoenix, 471 F.3d 1100, 1103 (9th Cir.

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2006). The plaintiff must allege “(1) a threatened or actual distinct and palpable injury

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to [himself]; (2) a fairly traceable causal connection between the alleged injury and the

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… challenged conduct; and (3) a substantial likelihood that the requested relief will

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redress or prevent the injury.” Id., 471 F.3d at 1104 (internal citation omitted). The

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element, sometimes described as “injury in fact,” necessitates a showing of “an invasion

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of a legally protected interest” that “affect[s] the plaintiff in a personal and individual

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way.” Id. (internal citation omitted). A plaintiff seeking to invoke federal court

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jurisdiction must plead the he has suffered some cognizable injury to make the threshold

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showing of a case or controversy. See id.

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Plaintiff Shandrow cannot establish an injury in fact. The Kindle DX pilot is

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limited to the Human Event course in the Barrett Honors College. Plaintiff Shandrow is

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a junior in the School of Journalism and is therefore ineligible for the Human Event

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course. (Ex. 3 at ¶10 and Plaintiff’s Motion at 2.) No class that Plaintiff Shandrow

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could enroll in is participating in the Kindle pilot. (Ex. 1 at ¶4.) Thus Plaintiff

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Shandrow has suffered no injury in fact, nor would the issuance of a preliminary or

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permanent injunction prevent or redress any injury he may suffer.
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The Plaintiffs Cannot Succeed on Their Discrimination Claims
Because No Plaintiff or Members of the Plaintiff Organizations
Are Excluded From the Kindle DX Pilot or the Human Event
Course Because of Their Disabilities.

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ASU has neither violated nor threatened to violate Title II of the Americans with
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Disabilities Act (ADA) or the Rehabilitation Act. ASU has no policy or practice of
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excluding any disabled individuals from participating in the Barrett Honors College or
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the Human Event course. Title II of the ADA prohibits discrimination in education:
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No qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such
entity.

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42 U.S.C. § 12132. Title II applies to state and local agencies, including publicly funded
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universities, such as ASU. See Zukle v. Regents of the University of California, 166 F.3d
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1041, 1045 (9th Cir. 1999).
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Section 504 of the Rehabilitation Act prohibits discrimination by recipients of
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federal funds:
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No otherwise qualified individual with a disability … shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance …

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29 U.S.C. § 794.
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The standards for establishing a claim under Title II of the ADA and Section 504
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of the Rehabilitation Act are essentially the same. See Zukle, 166 F.3d at 1045 n.11.
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The plaintiff must show: (1) a disability under the Act; (2) that he or she is “otherwise

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qualified” for the program or activity; (3) dismissal or exclusion from the program or

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activity because of the disability; and (4) that the school receives federal financial

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assistance and is a public entity. See id., 166 F.3d at 1045. ASU and ABOR do not

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dispute that ABOR is a public entity that receives federal financial assistance and that

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ASU is an institution under ABOR’s governance. Nor does ASU dispute that a blind

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student is disabled under both acts.

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Plaintiff Shandrow’s discrimination claim fails immediately and for the same

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reason that he has no standing. Shandrow is not a qualified individual. A qualified

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individual, for purposes of postsecondary education, is “a handicapped person who

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meets the academic and technical standards requisite to admission or participation in the

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recipient’s education program or activity.” 45 C.F.R. 84.3(l)(3). Only students in the

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Barrett Honors College are eligible to participate in the Kindle DX pilot; Plaintiff

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Shandrow is not a student in the Barrett Honors College. He therefore does not meet the

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academic requirements.

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Although it is purely hypothetical at this point, qualified blind students may

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participate in any section of the Human Event, including those piloting the Kindle DX.

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Registration materials did not separately designate the sections piloting the Kindle DX,

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nor did they list sight as a prerequisite. (Ex. 2 at ¶¶ 6 and 8.) No blind students have

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been excluded. (Ex. 2 at ¶7.)

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Plaintiffs contend (at 10) that that the Kindle pilot would violate the Acts’

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implementing regulations because it would afford blind students an unequal opportunity

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to participate and would provide a service that is not as effective in affording equal

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opportunity. (Citing 28 C.F.R. 35.130(b)(1) and 34 C.F.R. 104.4(b)(1).) Plaintiffs cite

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no case, however, in which these regulations have been used to prohibit the use or mere

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testing of a new technology. Nor have Defendants found such a case. The law does not

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require identical access:

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For purposes of this part, aids, benefits, and services, to be
equally effective, are not required to produce the identical
result or level of achievement for handicapped and
nonhandicapped persons, but must afford handicapped
persons equal opportunity to obtain the same result, to gain
the same benefit, or to reach the same level of achievement,
in the most integrated setting appropriate to the person's
needs.

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34 C.F.R. 104.4(b)(2). Plaintiffs’ arguments thus hinge on their sheer speculation that
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the accommodations blind students currently use will be less effective in conveying the
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Human Event course content than the Kindle DX. No one knows whether that is true. In
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fact, ASU is conducting the pilot, in part, to determine whether the Kindle DX is as
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effective as traditional texts and whether students like using it. (See Ex. 1 at ¶6.)
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Plaintiffs can provide no evidence that blind students supplementing Kindle by accessing
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the texts on other electronic devices will not be able to achieve the same benefit, result,
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or understanding of the Human Event course as their Kindle DX-using peers.
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Plaintiffs’ complaint and motion allege delays in the time it takes to obtain
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accessible texts and Plaintiffs complain about the quality of those materials. Plaintiffs
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have thus far offered no affidavits or evidence to support those allegations, nor will they
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be able to do so, particularly with regard to DRC’s ability to provide course materials for
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the Human Event. If a blind student wanted to scan and covert those materials, the DRC
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could meet that request in a few days due to the nature of those texts. (Ex. 3 at ¶ 4.) The
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materials would then be available to the blind student on the technology that the student
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is currently using. Such a student, using an already familiar technology, might even
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have a technological advantage over his Kindle DX-using classmate who is trying to
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adjust to reading texts and making notes on an electronic screen, as opposed to a
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standard textbook. Even if the DRC’s services were less than ideal, Plaintiffs’ requested
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relief would do nothing to resolve those issues.
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As an alternative to participating in a pilot section, a hypothetical blind student
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can achieve the full benefit of the Human Event course by registering in a non-pilot
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section. For the 2009-2010 academic year, there are forty-seven sections of the Human
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Event offered to students in the Barrett Honors College. (Ex. 2 at ¶3.) Of those, only

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three will participate in Kindle DX pilot and of the 900 students taking the Human Event

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course, only fifty-eight will participate in the pilot. (Ex. 2 at ¶3 and Ex. 1 at ¶4.)

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Assuming arguendo that the Kindle pilot could not accommodate a blind individual,

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Plaintiffs have not cited a single case or authority that would require abandonment of the

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pilot. If there were a blind individual in the 2009-2010 meeting the academic

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requirements for the class, that person would have “equal opportunity to obtain the same

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result, to gain the same benefit, or to reach the same level of achievement,” in a section

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of the Human Event course that is not involved in the Kindle DX pilot. That individual

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can still participate in the Human Event course and receive an equal opportunity to

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succeed and participate in an integrated setting with over 90% of the students in the

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Barrett Honors College.

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Because no otherwise qualified blind student has been excluded from or provided

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unequal participation in the Human Event, Plaintiffs are unable to show that they are

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likely to succeed on the merits of their discrimination claim.

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B.

There is No Injury to Any Blind Individual or to the Plaintiff
Organizations, Let Alone Likely Irreparable Harm.

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Even if the Court concludes that Plaintiffs are likely to succeed on the merits, the
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Court should deny the request for an injunction because there is no irreparable harm.
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Plaintiffs must demonstrate that irreparable harm is likely, not just possible. See
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Stormans, Inc. v. Selecky, 2009 WL 1941550, at *13 (9th Cir. July 8, 2009) (recognizing
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that the standard for irreparable harm in the Ninth Circuit is more stringent since the
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Supreme Court’s decision in Winter).
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Plaintiffs claim that Shandrow will be denied the opportunity to participate in the
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Kindle DX pilot beginning in the Fall of 2009. As discussed above, Plaintiff Shandrow
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is not “otherwise qualified” to participate in the Kindle DX pilot. He will thus suffer no
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harm if the pilot proceeds.
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No other blind students will suffer harm, irreparable or otherwise. No blind

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students have registered as freshmen in the Barrett Honors College for the Fall of 2009.

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(Ex 3 at ¶9 and Ex. 2 at ¶7.) Although ASU admitted one blind student to the Barrett

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Honors College, that student has not accepted or registered for classes. (Ex. 3 at ¶9.)

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Even if there were a blind student entering Barrett Honors College, that student will not

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be harmed because the pilot sections of Human Event are full. (Ex. 2 at ¶ 4.) Even if

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they were not, a hypothetical late-registering blind student would have a choice of

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reasonable accommodations, each providing the full benefit of the Human Event course.

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The student could opt to switch to any one of the other forty plus sections of the class not

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using the Kindle DX or the student could agree to participate in the pilot, with the likely

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need to supplement the Kindle DX with accessible materials that are easily available.

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With either accommodation, ASU is confident that the student can achieve the full

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benefit of the Human Event course.

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The plaintiff organizations will also suffer no irreparable harm. They cite a drain

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on their resources if they are forced to fight the alleged discrimination. The cases

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Plaintiffs cite, however, address the issue of standing, not irreparable harm. Havens

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Realty Corp. v. Coleman, 455 U.S. 363, 379 (1979); Fair Housing of Marin v. Combs,

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285 F.3d 899, 905 (9th Cir. 2002). No Ninth Circuit case supports the proposition that

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an organization can institute litigation and then claim that its voluntary action constitutes

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irreparable harm. Were that the case, a plaintiff could always prove irreparable harm,

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because every lawsuit is a drain on resources. Even if the alleged drain on resources

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could constitute an actionable harm, an injunction against ASU would not prevent this

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harm, because the Court’s order would not enjoin the six other institutions currently

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participating in the pilot

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The plaintiff organizations also contend that if this Court does not enjoin ASU’s

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participation in the pilot, it will “delay development of accessible menus.” (Motion at

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10.) This is sheer speculation, which the plaintiffs cannot possibly prove. Again, the

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pilot will continue with or without ASU’s participation. (Ex. 1 at ¶7.) There is no

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evidence that an order preventing one institution’s participation would speed the

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development of accessible menus. In fact, it is just as likely that ASU’s participation in

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the Kindle DX pilot will help to speed the development of accessible menus. If ASU is

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impressed with the Kindle DX, perhaps an ASU staff member, faculty member, or

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student will find a way to make the Kindle DX accessible using other applications. In

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addition, Amazon will be receiving feedback from participating institutions and students.

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(Ex. 1 at ¶¶8 and 9; Ex. 2 at ¶5.) With feedback from the pilot, Amazon will have a

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better understanding of the potential market for the device, and will have reason to invest

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in accessibility. Why not let the pilot proceed and encourage the parties to work together

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to address the accessibility issues?

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C.

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The equities favor permitting the pilot to proceed. In balancing the hardships, the

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Court must assess the damage to each party. See Stormans Inc., 2009 WL 1941550 *23.

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ASU has put substantial effort into the pilot: Dr. Humphrey proposed and designed the

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pilot; ASU entered into an agreement with Amazon; Amazon has provided ASU with

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some of the Kindle DX devices; ASU has purchased some of the Kindle DX devices;

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students have registered and been advised of their participation in the pilot; ASU has

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hired a teaching assistant to assist with technical issues; ASU has designed training and

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planned to train the participating students on the Kindle DX; and students have planned

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to attend the Kindle DX training taking place a few days before the semester begins. (Ex

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1 at ¶5 and Ex. 2 at ¶11.)

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The Balance of Equities Clearly Favors the Defendants.

No Plaintiff will suffer any hardship if the pilot continues. Not a single blind

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student is affected by the pilot. The plaintiff organizations would continue to wage battle

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against the other universities conducting Kindle DX pilots even if ASU’s Kindle DX

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pilot is enjoined.

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An Injunction Would Serve No Public Interest.

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A court weighs “the public interest in light of the likely consequence of the

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injunction. Such consequences must not be too remote, insubstantial, or speculative and

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must be supported by the evidence.” Stormans, Inc., 2009 WL 1941550 *25. The likely

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consequence of granting Plaintiffs’ request for an injunction is only that the Kindle DX

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pilot at ASU will be enjoined. This Court cannot order Amazon to add accessible menus

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to the Kindle DX, which is the public interest that the Plaintiffs really promote. The

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Plaintiffs have not even sued Amazon. This Court also cannot stop Amazon and other

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universities from continuing the Kindle DX pilot in other jurisdictions without

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interruption. There is no benefit to Arizonans at large in excluding their university from

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the pilot.

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Further, there is no public interest to be served in granting Plaintiffs’ motion for

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an injunction. Plaintiffs’ motion merely cites the general proposition that the public

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interest is served by preventing disability discrimination. Since there is no

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discrimination, there is no public interest being served. Stopping ASU from conducting

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an experiment designed to test the effectiveness of a new method of delivering texts to

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students does not promote the public interest.

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There is, however, a strong public interest in permitting the Kindle DX pilot to

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proceed because of the device’s potential ability to assist other disabled students.

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Although ASU agrees that the Kindle DX is not currently accessible to blind students

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without personal assistance from a sighted individual, the Kindle DX could be a boon to

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many students with other disabilities. For example, the Kindle DX’s ability to display

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enlarged text and the text-to-voice feature can be very beneficial to students with low

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vision, limited motor movement, or dyslexia. (Ex. 3 at ¶11.) ASU also takes Amazon at

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its word that it is planning to introduce accessible menus in the future. (Ex. 1 at ¶10.)

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All of these factors will also be considered by ASU in making future decisions about the

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potential uses of Kindle DX. (Ex. 1 at ¶11.) The public interest thus supports the

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development and testing of this new technology.

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IV.

CONCLUSION.
This case is so clear that no hearing is required to deny Plaintiffs’ motion. Rule

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65 does not require an evidentiary hearing. Bradley v. Pittsburgh Bd. of Educ., 910 F.2d

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1172, 1175 (3d Cir. 1990). The court has discretion to decide whether to hold a hearing.

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6 James Wm. Moore et al, Moore’s Federal Practice ¶ 10.22(6)(a) (3d ed. 1999).

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“…[P]reliminary injunctions are denied without a hearing, despite a request therefor by

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the movant, when the written evidence shows the lack of a right to relief so clearly that

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receiving further evidence would be manifestly pointless.” 11A Charles Alan Wright,

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Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2949 (2009).

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For the foregoing reasons, Defendants respectfully request that the Court deny

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Plaintiffs’ motion for a preliminary injunction.
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
Attorneys for Plaintiff

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Daniel F. Goldstein
Mehgan Sidhu
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore St., Suite 1700
Baltimore, MD 21202

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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
515710

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