Summary

The Department is proposing to eliminate the requirement that it and the other federal agencies responsible for enforcing ADA Title II investigate each and every ADA Title complaint. The disability community is strongly opposed to this change, for the reasons below.

Comment

We strongly oppose the proposal to eliminate the requirement that the Department investigate each complaint, because it is crucial that all Title II complaints each be investigated, as has always been the case under Section 504.

There are far fewer ADA Title II complaints than ADA Title III complaints. If the Department is overloaded, its response should be to obtain additional resources to address the additional complaints, not to reduce civil rights enforcement for people with disabilities. For example, the Department of Transportation, with strong support from the disability community, obtained additional funding for more robust enforcement of the Air Carrier Access Act. The disability community will support and work towards such a goal alongside the Department.

The Department’s obligation to investigate all Title II complaints remains crucial because Title II entities are providing vital programs and services to all members of the community.  People with disabilities have few other avenues of redress if state and local governments fail to provide equal opportunity to people with disabilities.

Furthermore, federal enforcement via an administrative remedy in disability civil rights, as in all civil rights, plays a crucial role. For example, it must be noted that the lack of a thorough administrative remedy in Title III of the ADA has had many deleterious consequences. Since DOJ opens very few ADA Title III complaints, the only recourse available for nearly all ADA Title III violations, if advocacy fails, is litigation. This problem is so significant that there has been a potentially very damaging interest by some in Congress for a devastating ADA amendment about “notice” – all due to the lack of a thorough administrative remedy for Title III. DOJ should be expanding its capacity to investigate every Title III complaint, not deteriorating its enforcement of Title II to match what is already an unacceptable situation in Title III.

Moreover, access to the activities of government is a fundamental right protected under the Due Process Clause of the 14th Amendment, per Lang v. Tennessee. The federal government must stand as the guarantor of civil rights when the violator is state or local government. Otherwise, the power differential between people with disabilities and the state or local governments that are obligated to serve them, is much too great for any alternate routes to justice to be open or effective.

And lastly, it must be noted that the very complaints that DOJ will ignore, the "on the edges," less-significant, daily and ordinary types of discrimination; that is, those that are common and don’t rise to the top, are exactly the ones that need an administrative remedy, because these are not the types of issues that people will bring a lawsuit over. These are exactly the types of situation that an attorney will not take (which, again, echoes the problems we have today in Title III). Thus, the Department’s proposal will, in effect, allow discrimination in all those ways, rather than protecting against it. If the Department doesn't investigate all Title II complaints, this will be a very serious step backwards.