Supreme Court’s new target: the Americans with Disabilities Act

A ruling could essentially rewrite the ADA, which was designed to put enforcement partly in the hands of those best positioned to recognize public access discrimination: those with disabilities.

An accessibility ramp led to the orchestra pit in the newly refurbished Huntington Theatre on Oct. 6, 2022.Josh Reynolds for The Boston Globe

With a one-line order, the Supreme Court put disability rights advocates on edge Monday.

“In this era, any civil rights case that goes to the court gives one agita,” said Robert Dinerstein, director of the Disability Rights Law Clinic at American University.

As we await rulings this term that could gut the already battered Voting Rights Act, weaken laws protecting the LGBTQ community, and eviscerate affirmative action in college admissions, the court teed up a new target for next term: the Americans with Disabilities Act.

The court agreed to decide whether disability rights advocates can sue hotels, restaurants, or other businesses that provide public accommodations for violating the anti-discrimination law when the advocates have no intention of patronizing those establishments. In other words, do so-called “testers,” whose sole intention is to force those businesses to comply with the ADA’s accessibility requirements, have standing to sue?

If the court decides the answer is no, it would be a win for businesses that claim such suits — sometimes filed by the hundreds by single litigants — are nuisance cases that threaten to destroy businesses that do not have the financial resources to engage in lengthy and costly legal battles.

“This case does not involve any allegations of discriminatory treatment,” states a brief from attorneys representing the Coast Village Inn and Cottages in Wells, Maine, one of many businesses disability activist Deborah Laufer sued after visiting its website and finding no information about ADA accommodations. “Instead (Laufer) merely alleges that a public website did not contain information she did not need.”

But disability rights advocates say such a ruling would essentially rewrite the ADA, which was designed to put enforcement partly in the hands of those best positioned to recognize public access discrimination: those with disabilities.

Businesses that claim they are being unfairly targeted “leave out one critical factor: that very few have ever complied with the ADA voluntarily,” Laufer’s attorney wrote in a brief. “Rather, nearly everybody waits until they are sued.”

Dinerstein said the fact that Laufer, who uses a wheelchair and has vision impairments, has filed hundreds of suits doesn’t necessarily mean she’s a vexatious plaintiff.

“The way I’d hope someone would look at it is, she really has an interest in this,” Dinerstein told me. “This is not somebody who randomly decided to file suit. She really is functioning like a private attorney general.”

And that function is crucial if the ADA is going to have any teeth at all in ensuring people with disabilities are able to have the same access and civil rights protections.

“No government agency can possibly be on top of all these things,” Dinerstein said.

What’s troubling here is that there are ways to curtail frivolous or abusive lawsuits designed more to rack up attorney fees and cash judgments than to pursue justice. States can pass or amend laws governing attorney fee awards, and Congress could amend the ADA to allow, for example, businesses to have a grace period to correct accessibility violations before suits can be filed. By leaving it to the court, if past is prologue, a crucial part of the ADA will be in peril.

Start with the fact that this conservative-leaning court has been a boon to businesses. According to a 2022 study, businesses have prevailed 63.4 percent of the time in cases before the Roberts Court. Compare that to the second most business-friendly court in history, the Rehnquist Court, where businesses came out on top 48.3 percent of the time.

Add the court’s appetite for rolling back civil rights protections — especially when those protections seem to get in the way of parties that the majority of justices seem to have sympathy for, like businesses that want to refuse service to LGBTQ clients or Republican lawmakers who want to gerrymander their districts.

And this is all despite the fact that testers who challenge businesses engaged in discrimination have historically been a crucial tool in protecting civil rights. Consider the bombshell 2020 report — using testers that had no intention of actually renting properties — that found that Black would-be renters in Greater Boston experienced discrimination by real estate brokers and landlords in a whopping 71 percent of cases. The use of testers has been foundational in addressing racial discrimination, gender bias, anti-LGBTQ practices, and more.

But all that could be in peril if the court strips that tool from ADA litigation.

I’m not naive enough to think Congress might act to clarify the ADA in a way that ensures fairness to businesses while keeping the private right of action intact, which would be the ideal solution. But if there is any appetite for lawmakers to act, now is the time — before the Supreme Court does first.