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

Filing 45

REPLY in Support re 29 MOTION to Dismiss Case (Plaintiff Shandrow) filed by Arizona Board of Regents, Arizona State University. (Blandford, Alisa)

Download PDF
1 2 3 4 5 6 7 TERRY GODDARD Attorney General Lisa K. Hudson, 012597 Alisa A. Blandford, 022901 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7673 Telephone: (602) 542-7687 Fax: (602) 542-7644 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, Plaintiffs, 15 16 The ARIZONA BOARD OF REGENTS and ARIZONA STATE UNIVERSITY REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF SHANDROW FOR LACK OF STANDING vs. 17 Case No: CV09-01359 GMS 18 (Assigned to Honorable G. Murray Snow) Defendants. 19 20 Defendants Arizona Board of Regents (ABOR) and Arizona State University 21 (ASU) submit their Reply in Support of Defendants’ Motion to Dismiss Plaintiff 22 Shandrow for Lack of Standing. Plaintiff Shandrow lacks standing because he can not 23 establish an injury in fact, which is required to establish Article III standing. 24 MEMORANDUM OF POINTS AND AUTHORITIES 25 Shandrow, a blind student, is protesting ASU’s pilot program involving the 26 Kindle DX, a new technology that is currently inaccessible to students with no vision. 27 The Kindle DX pilot program is a year-long program that involves three sections of one 28 1 class in the Barrett Honors College. Declaration of Ted Humphrey (Humphrey 2 Declaration) ¶ 4 1 . Shandrow is not eligible to take any sections of this class because he 3 is not in the Barrett Honors Colleges. Humphrey Declaration ¶ 6. The sole basis for 4 Shandrow’s exclusion from the class and, as a result the Kindle DX pilot program, is the 5 fact that he is not a student in the Barrett Honors College. Shandrow does not allege that 6 he was excluded from the Kindle DX pilot program due to his disability. 7 Notwithstanding the fact that Shandrow is ineligible to participate in the Kindle 8 DX pilot program due only to the college he is associated with, he nevertheless asserts 9 that ASU has harmed and discriminated against him due to its participation in the Kindle 10 DX pilot program. Shandrow’s assertions as to the harm he suffers or might suffer if 11 Kindles become available for additional classes fails to establish Article III standing. 12 His allegations of potential future harm are too speculative to constitute a “concrete 13 injury” as is required by law. His assertion that he suffers “dignitary harm” because 14 ASU has adopted technology that is inaccessible to him fails to rise to the level of an 15 injury in fact, as is required to prove standing. Finally, his assertion that he is harmed 16 because he pays tuition at ASU fails as a matter of law. 2 I. 17 18 Shandrow’s Allegation of Future Harm Is Insufficient to Establish Standing. Shandrow’s allegation that the potential wider adoption of the Kindle DX in the 19 20 future by ASU presents a threat of discrimination is not sufficient to confer standing. 21 Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss Plaintiff Darrell 22 Shandrow for Lack of Standing (Brief) at 10-13. See also Complaint at ¶ 23. Although 23 the courts have held that under some circumstances the threat of future harm is sufficient 24 1 25 26 27 28 The Declaration of Ted Humphrey is attached to Defendants’ Motion to Dismiss Plaintiff Shandrow for Lack of Standing at Exhibit 1. 2 Both parties have submitted extrinsic evidence in support of their motions. Because Defendants’ Motion to Dismiss was for lack of subject matter jurisdiction pursuant to Federal Rule of Procedure 12(b)(1), consideration of material outside pleadings does not convert the motion into one for summary judgment. See Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983); see also McCarthy v. U.S., 850 F.2d 558, 560 (9th Cir. 1988). 2 1 to establish standing, Shandrow’s assertion that he has standing due to the threat of 2 future discrimination is speculative at best. 3 The Supreme Court and the Ninth Circuit have held that “threatened rather than 4 actual injury can satisfy Article III standing requirements.” Harris v. Bd. of Supervisors, 5 Los Angeles County, 366 F.3d 754, 761 (9th Cir. 2004). Plaintiffs must still establish an 6 “injury in fact,” which requires them to “allege an imminent threat of concrete injury, 7 and [plaintiffs] must distinguish themselves from the public at large by demonstrating 8 that the alleged injury ‘affect[s them] in a personal and individual way.’” Id. quoting 9 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992). Plaintiffs must establish a 10 concrete risk of harm; speculative, “some day” damages are insufficient to confer 11 standing to sue. Id. at 762 quoting Lujan, 504 U.S. at 563. 12 Cases in which the courts have held that the threat of future harm is sufficient to 13 establish standing involve situations where the nature and severity of the threatened 14 harm are concrete and established. In Harris, plaintiffs – a group of chronically ill 15 indigent patients who relied on county health services – could establish that if the 16 County was not enjoined from closing a hospital and reducing beds at another, their 17 physical health and well being would be threatened. Id. at 758-759, 762. In Covington 18 v. Jefferson County, the court held that the risk plaintiffs faced was “in no way 19 speculative” because plaintiffs lived across the street and down-gradient from an 20 improperly run landfill that increased their risk of fires, explosions, and groundwater 21 contamination. Id. at 761 citing Covington v. Jefferson County, 358 F.3d 626, 638 (9th 22 Cir. 2004). 23 Courts hold that the threat of future harm is insufficient to establish standing 24 where the assertions of harm are speculative. The quintessential example is Lujan v. 25 Defenders of Wildlife, in which plaintiffs attempted to challenge the Secretary of the 26 Interior’s interpretation of the geographical scope of the Endangered Species Act (ESA), 27 limiting it to actions only within the United States or on the high seas. 504 U.S. 555, 28 3 1 557-58 (1992). The Lujan plaintiffs asserted that they had standing to challenge the 2 interpretation of the rule because “they had observed the habitats of certain endangered 3 species in foreign countries, and . . . they intended to return sometime in the future to try 4 to see the animals” but were concerned that there was a risk of damage to the habitats 5 that might cause the animals’ extinction if the geographical scope of the ESA was 6 limited. Harris, 366 F.3d at 761-62, citing Lujan, 504 U.S. at 563-64. In Lujan, “[t]he 7 Supreme Court concluded that the plaintiffs’ ‘some day’ intentions were insufficient to 8 confer standing to sue.” Id. at 762, citing Lujan, 504 U.S. at 564. The Court also 9 discussed the difficulty plaintiffs have in challenging the legality of government action 10 when, as in this case, the plaintiff is not the object of the action or inactions, concluding 11 that “when the plaintiff is not himself the object of the government action or inaction he 12 challenges, standing is not precluded but it is ordinarily substantially more difficult to 13 establish.” Lujan, 504 U.S. at 561-62. 14 The cases Plaintiffs’ rely upon in their brief fail to support their assertion that the 15 harm alleged by Shandrow confers standing. In Parents Involved in Cmty. Schools v. 16 Seattle School Dist. No. 1, Plaintiffs – a group of parents with children enrolled in 17 Seattle School District No. 1 – asserted two different injuries that arose from the school 18 district’s “racial tie-breaker policy.” 551 U.S. 701, 718-19 (2007). First, that in the 19 future their children might be subject to exclusion from the school of their choice on the 20 basis of race if the racial tie-breaker policy was in place. Id. at 718. Second, that being 21 forced to compete in a race-based admissions system caused injury under the Equal 22 Protection Clause. Id. at 719. The Supreme Court held that the parents had standing to 23 sue on both grounds, but focused primarily upon the standing conferred by case law 24 under the Equal Protection Clause. Id. Unlike Shandrow’s allegation of injury which 25 relies upon hypothetical adoption of a technological device in some fashion in the future, 26 the Parents plaintiffs could identify a concrete policy that, at the time their suit was filed, 27 could operate to exclude their child in a specific, identifiable manner on the basis of that 28 4 1 child’s race. Shandrow alleges no such policy, nor can he state with any certainty how 2 he will be impacted or affected, unlike the Parents plaintiffs. 3 Similarly, the plaintiffs in Ocean Advocates v. United States Army Corps. of 4 Engineers, were able to identify a specific plan for the immediate future that might result 5 in a specific, identifiable type of harm. 402 F.3d 846 (9th Cir. 2005). Plaintiffs were 6 non-profit environmental groups and individuals opposing the issuance of a permit that 7 allowed BP West Coast Products to build an addition to an existing oil refinery dock. Id. 8 at 855. In asserting that they had standing, Plaintiffs asserted that the extension of the 9 dock would lead to increased tanker traffic and increase the risk of an oil spill. Id. at 10 860. The Court held that the plaintiffs had standing because the alleged injury was not 11 conjectural or hypothetical and that, in environmental cases, requiring “actual evidence 12 of environmental harm, rather than an increased risk based on a violation of [a] statute . . 13 . would unduly limit the enforcement of statutory environmental protections.” Id. 14 (internal citations and quotation marks omitted). Once again, unlike Shandrow, the 15 plaintiffs identified a specific basis for their potential harm – the issuance of a permit 16 allowing expansion of the oil refinery dock – and a specific resultant harm that might 17 occur as a direct result – increased risk of oil spills. 18 Plaintiff Shandrow’s assertion that he has standing due to a threat of future harm 19 is speculative and is far more similar to the alleged future harm claimed in Lujan than in 20 those cases where plaintiffs were found to have standing. Like the Lujan plaintiffs, 21 Shandrow is not the object of the Defendants’ actions in this matter. Unlike the 22 plaintiffs in cases where standing was found, Shandrow can not point to a policy, permit 23 or regulation currently in place that will lead to an identifiable, concrete harm or the 24 increased risk of such harm in the future. 25 The potential future uses of the Kindle DX at ASU have not been established and 26 there is no current plan or policy in place to expand the Kindle DX beyond the pilot 27 program. Plaintiff’s threat of future harm depends on a number of conditions coming 28 5 1 into existence that are currently unknown. First, the Kindle DX must remain 2 inaccessible. Second, ASU must actually expand Kindle use within the university. 3 Third, to show that ASU has caused this future harm, ASU must provide the Kindles to 4 students in the hypothetical future classes. In addition, Plaintiff must actually register in 5 one of these hypothetical classes. Finally, Plaintiff must actually be subject to 6 discrimination in the sense that he is denied meaningful participation in the hypothetical 7 class using the Kindle. In other words, it would have to be true that the Kindle DX 8 provides a highly superior learning experience that cannot be duplicated by accessing 9 texts through any other medium. Plaintiff can not state that any of the conditions necessary to establish a concrete 10 11 risk of future harm will be present in the future. Plaintiff Shandrow’s assertions of harm 12 based on the threat of discrimination in the future are purely speculative and fail to 13 establish an injury-in-fact such that it confers standing. 14 15 16 II. Shandrow’s Claim of Suffering Dignitary Harm Is Not Sufficient to Establish Standing. Plaintiff Shandrow asserts that he has suffered dignitary harm because ASU has 17 adopted a technology that excludes him and others with his disability. Shandrow’s 18 argument is without merit and, if accepted by the court and expanded to its logical end, 19 would open the door to a possible ban on textbooks as well as a ban on a number of 20 assistive devices used by individuals with various disabilities. 21 In asserting that dignitary harm is sufficient to establish an injury in fact, Plaintiff 22 relies upon Smith v. Pac. Pro. and Dev. Corp., a Fair Housing Amendments Act (FHAA) 23 case that stands for the proposition that testers have standing to bring suit under the 24 FHAA. 358 F.3d 1097, 1107 (9th Cir. 2004). In determining that testers had standing 25 under the FHAA, the court held that observing overtly discriminatory conditions, such as 26 a lack of a ramped entryway or other architectural barrier, was an injury sufficient to 27 establish standing. See Smith, 358 F.3d at 1104. The court then indicated that observing 28 6 1 “such overtly discriminatory conditions” could cause dignitary harm to a disabled 2 person. Id. “Dignitary harm” has not been relied upon or cited in any cases since Smith 3 as a basis to establish standing. 4 The facts in this matter differ from Smith in a number of significant respects. 5 First, Smith involves the FHAA, not the Americans with Disabilities Act or the 6 Rehabilitation Act. Plaintiff asserts in his response that the ADA should be interpreted 7 consistent with the FHAA because the ADA and FHAA have similar intent. Plaintiffs’ 8 Brief at 14. Although the Tenth Circuit has “held that a disabled tester has standing to 9 seek injunctive relief under Title II of the ADA,” the only decision from a court in the 10 Ninth Circuit to examine this issue explicitly declined to extend tester standing to those 11 cases brought under the ADA. Harris v. Stonecrest Care Auto Ctr., LLC, 472 F.Supp.2d 12 1208, 1219 (S.D. Cal. 2007), citing Tandy v. City of Wichita, 380 F.3d 1277, 1286 (10th 13 Cir. 2004). 14 In addition, a University participating in a one-year pilot program involving an 15 emerging technology and a miniscule fraction of the enrolled students is not an “overtly 16 discriminatory condition,” like those discussed in Smith. 358 F.3d at 1104. The Smith 17 court referenced overtly discriminatory conditions in a discussion of architectural 18 barriers that prevented the tester from accessing the building at issue. Id. Shandrow has 19 not been denied access to a building or a class due to the Kindle DX pilot program. 20 Shandrow has not been denied access to materials in an accessible format for any class 21 that he has registered for due to the Kindle DX program. Indeed, Shandrow had not 22 observed the Kindle DX pilot program and knew none of the details of the program at 23 the time he brought suit. See D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 24 1031, 1036 (2008), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n.4 (1992) 25 (“The evidence relevant to the standing inquiry consists of ‘the facts as they existed at 26 the time the plaintiff filed the complaint.’”) 27 28 7 1 Shandrow attempts to rely on other cases in support of his “dignitary harm” 2 argument but fails because the plaintiffs in those matters were able to show sufficient 3 injury to establish standing under the relevant legal theories unlike Shandrow. Plaintiffs’ 4 Brief at 13-16. Shandrow asserts that the fact that he is offended and feels unwelcome at 5 ASU because they are participating in the Kindle DX pilot program; none of the cases 6 cited by Shandrow grant standing on either basis. In Harris v. Itzhaki, the court found 7 that the plaintiff had limited standing even though she had identified an indirect injury, 8 because she had identified “a distinct and palpable injury resulting from the differential 9 treatment,” namely the exclusion of African-American individuals on the basis of their 10 race, which was sufficient under the FHA to establish standing. 183 F.3d 1043, 1051 11 (9th Cir. 1999). In Barnes-Wallace v. City of San Diego, the court held that the plaintiffs 12 had standing because they had “shown both personal emotional harm and the loss of 13 recreational enjoyment,” which are both recognized as basis for standing under 14 Establishment Clause cases and in environmental cases respectively. 550 F.3d 776, 784- 15 85 (9th Cir. 2008). Although Shandrow alleges that his injury is analogous to the 16 injuries identified in the above cases, he has not alleged that Defendants are refusing to 17 admit disabled students to ASU or that he is avoiding ASU or has withdrawn as a student 18 due to the Kindle DX pilot program. 19 Shandrow has not clearly stated how he would be harmed by other students’ use 20 of the Kindle DX device whether in the context of the Kindle DX pilot or as an 21 independent assistive device. To establish standing, Shandrow must demonstrate 22 “invasion of a legally protected interest which is (a) concrete and particularized, and (b) 23 actual or imminent . . ..” Lujan, 504 U.S. at 560-61 (citations and quotation marks 24 omitted). Plaintiff has not and can not demonstrate that he has a legally protected 25 interest in ensuring that every device used by every student in every classroom is 26 accessible to him. The vast majority of students currently use textbooks for classroom 27 and collegiate learning. Because Plaintiff cannot use printed textbooks, should they be 28 8 1 prohibited? Should the libraries on the ASU campus be closed and all future book 2 purchases prohibited because Plaintiff can not access the books? Plaintiff himself uses 3 technology that is inaccessible to students with disabilities other than blindness. A deaf 4 student would be unable to use the audio-books created by ASU at Plaintiff’s request. 5 Should audio-books be banned because they are inaccessible to deaf students? Indeed, 6 there may currently be an ASU student utilizing a Kindle outside the confines of the 7 Kindle DX pilot program as an assistive or substitute device. Should that student be 8 prohibited from using his personal device because it is not accessible to Shandrow? 9 While Shandrow claims that he is offended by ASU’s use of technology that is 10 inaccessible to him, simple offense without more is insufficient to establish standing. 11 Without a legally protected interest and an injury that is concrete, particularized, actual, 12 and imminent, Shandrow can not establish an injury in fact. Shandrow has failed to meet 13 his legal burden. 14 15 III. Paying Tuition Does Not Give Shandrow Standing to Sue Over the Expenditure of State Funds. 16 Shandrow’s argument that he has suffered a tangible economic injury because his 17 tuition dollars are being used to purchase inaccessible technology is without legal basis. 18 Plaintiff’s argument is an attempt to create “student standing,” whereby any student who 19 pays tuition can sue a university over the expenditure of those funds. While students 20 may sue a university over a policy that causes harm to the student, Shandrow cites to no 21 case that permits a student to sue a university over how it allocates its financial resources 22 or the type of technology it purchases because the student pays tuition. For example, in 23 Hack v. President and Fellows of Yale Coll., a case cited by Plaintiffs, students 24 challenged Yale’s policy that required the students to live in dormitories in violation of 25 their religious beliefs under the Fair Housing Act. 237 F.3d 81, 88 (2d Cir. 2000), 26 abrogated on other grounds by Sweirkiewicz v. Sorema N.A., 534 U.S. 506 (2002). The 27 students also claimed a “tangible economic injury” in that they were harmed by paying 28 9 1 for dormitory rooms that were unavailable to them because of their religion. Id. A 2 critical distinction between Hack and this matter is that the students were not suing Yale 3 because Yale had expended college funds to build these dormitories but because Yale 4 had a policy that caused them economic harm. 5 Plaintiffs’ concept of “student standing” appears to be analogous to “taxpayer 6 standing,” especially in this case, given that Defendants are state entities. “It is well 7 established that individuals do not generally have standing to challenge governmental 8 spending solely because they are taxpayers, because ‘it is a complete fiction to argue that 9 an unconstitutional federal expenditure causes an individual federal taxpayer any 10 measurable economic harm.’” Winn v. Ariz. Christian School Tuition Org., 562 F.3d 11 1002, 1008 (9th Cir. 2009), quoting Hein v. Freedom From Religion Found, Inc., 551 12 U.S. 587 (2007). “This rule applies with equal force to taxpayer suits challenging an 13 allegedly unconstitutional state action and those challenging federal action.” Id., citing 14 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342-49 (2006); Arakaki v. Lingle, 477 15 F.3d 1048, 1062-63 (9th Cir. 2007). 16 Shandrow’s assertion that he has standing to sue ASU and ABOR because his 17 tuition dollars were used to purchase Kindles for use in the Kindle DX pilot program is 18 no different from those plaintiffs that sue the government over expenditure of taxpayer 19 funds asserting standing solely on the basis that they pay taxes. Without more, 20 Shandrow like all other students at ASU lacks standing to sue over ASU’s expenditure of 21 funds. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 10 1 2 IV. Conclusion. For the above stated reasons and those set forth in Defendants’ Motion to Dismiss 3 Plaintiff Shandrow for Lack of Standing, Defendants request that this Court grant 4 Defendants’ Motion and dismiss Plaintiff Shandrow for lack of standing. 5 Respectfully submitted this 4th day of September, 2009. Terry Goddard Attorney General 6 7 s/ Alisa A. Blandford__________ Lisa K. Hudson Alisa A. Blandford Assistant Attorney General Attorney for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 1 2 3 4 5 6 7 8 9 10 11 12 13 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 4th day of September, 2009 to: 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 14 15 Eve Hill 1667 K St. NW, Suite 640 Washington, DC 20006 16 Attorneys for Plaintiffs 17 18 19 s/Deb Anderson Secretary to Lisa K. Hudson 20 21 550030.1 22 23 24 25 26 27 28 12

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?