Major cases with systemic impact.
DLC’s work includes preparing and filing impact litigation, engaging in structured negotiations, and filing amicus briefs in order to address systemic issues that affect individuals with disabilities. Our current and past cases of note include the following:
Charlson, et al., v. Secretary of the Commonwealth, No. SJ-2020-0588
On August 21, 2020, DLC filed an Emergency Petition with the Supreme Judicial Court of Massachusetts on behalf of six individual petitioners, Bay State Council of the Blind (BSCB), and the Boston Center for Independent Living (BCIL) to compel the Secretary of the Commonwealth to implement a state law passed in July 2020 that requiring creation of accessible electronic vote by mail for the fast-approaching September 1, 2020 primary election. Per “An Act relative to voting options in response to COVID-19,” registered Massachusetts voters with disabilities are entitled to receive access to an accessible electronic vote by mail ballot as an accommodation from the Secretary intended to allow voters with disabilities the opportunity to electronically mark their ballot privately and independently using their own assistive technology, print their marked ballot, and mail or hand-deliver it to their local election official to be counted. As of the date that DLC filed the Emergency Petition, the Secretary had not provided the public with any information concerning the availability of accessible electronic vote by mail or the process for requesting that accommodation. In addition, it was only on the date of filing that the Secretary signed a contract with VotingWorks to create Massachusetts’ accessible vote by mail online system. Following mediation, the Court entered a Judgment in the case on August 26, 2020 establishing an extended deadline and special processes to allow voters with disabilities to access an electronic ballot through the new Accessible Vote by Mail system for the September 1, 2020 primary. On August 27, the Court granted the Parties’ Joint Motion to Amend the first judgment filed to resolve a dispute of interpretation between the parties.
Motion to Amend Judgement – Granted 8/27/2020
Rivero, et al. v. Galvin, et al., No. 1:20-cv-11808 (D. Mass.)
DLC filed the Complaint and Motion for Preliminary Injunction in Rivero on October 2, 2020 on behalf of four individual plaintiffs, Boston Center for Independent Living, and Bay State Council of the Blind. Plaintiffs alleged that Massachusetts’ Accessible Vote by Mail (AVBM) program failed to provide meaningful access to the voters with disabilities for whom it was created to accommodate in violation of the ADA and Rehabilitation Act. Specifically, the AVBM program prevented voters who are blind or have low vision, mobility/dexterity disabilities, or other print disabilities from casting their AVBM electronic ballots without third party assistance by including steps that constitute foreseeable barriers to private and independent voting. These steps included requirements that voters print their electronic ballots, sign an affidavit printed on an envelope in which the ballot had to be placed, and place that envelope into a second outer envelope before placing it in the mail. On October 13, 2020, a federal district court judge approved an agreed upon Judgement negotiated by the parties ordering changes to the AVBM program for the general election, including permitting email submission of accessible electronic ballots along with an accessible electronic affidavit that can be completed with a typewritten signature by voters unable to insert a hand-drawn signature due to a disability.
Motion for Preliminary Injunction
Memorandum of Law in Support of Motion for Preliminary Injunction
Accessibility Enhancements for HBO Max
Representing American Council of the Blind (ACB), Bay State Council of the Blind (BSCD), Kim Charlson, and Brian Charlson, DLC and Disability Rights Advocates reached a landmark Settlement Agreement with WarnerMedia Direct, LLC addressing screen reader accessibility and audio description of content on HBO Max – HBO’s online streaming platform launched earlier this year. Among other commitments, the agreement requires: (1) incremental improvements to make the HBO Max website, mobile applications, and internet-connected TV applications compliant with international web accessibility guidelines by September 2021 and (2) that WarnerMedia will provide audio description on at least 1,500 hours of new and existing programming on HBO Max by the end of March 2021, increasing to 3,000 hours by the end of March 2022, and doubling again to at least 6,000 hours in total by the end of March 2023. Monitoring of the Settlement Agreement is under way.
Briggs, et al. v. Department of Correction, et al., No. 1:15-cv-40162 (D. Mass.)
Co-counseling with Prisoners’ Legal Services, WilmerHale, and Washington Lawyers Committee for Civil Rights, DLC represents a class of prisoners who are deaf or hard of hearing in challenging discrimination by the Department of Correction (DOC). Specifically, the plaintiffs allege that DOC (1) fails to provide access to auxiliary aids and services, such as hearing aids or ASL interpreters, necessary to permit access to educational, vocational, and rehabilitative programming, medical and mental health care, and religious services; (2) denies deaf and hard of hearing individuals adequate, equally effective, and reliable means of communication with individuals outside of prison by failing to provide videophones or other assistive technology; (3) places deaf and hard of hearing individuals at serious risk of harm by not having an adequate emergency notification systems; (4) fails to provide adequate interpretative services and auxiliary aids at disciplinary and classification hearings and (5) discriminates against deaf and hard of hearing prisoners in work assignments. The parties entered into an extensive Settlement Agreement that addressed most claims, which was approved by the Court on November 25, 2019. Litigations of claims related to accessible emergency notification systems continues, with the parties awaiting a decision on Summary Judgment.
NAD, et al. v. Harvard University, et al., No. 3:15-cv-30023 (D. Mass.)
NAD, et al. v. MIT, No. 3:15-cv-30024 (D. Mass.)
DLC, Civil Rights Education and Enforcement Center (CREEC); the Disability Rights Education and Defense Fund (DREDF), Cohen Milstein Sellers & Toll PLLC, and the National Association of the Deaf (NAD) represent the interests of NAD and four deaf and hard of hearing individuals in federal class action lawsuits against Harvard University and the Massachusetts Institute of Technology (MIT), claiming that the schools discriminate against deaf and hard of hearing people by failing to caption the vast and varied array of online content they make available to the general public. The cases were filed in February 2015. Negotiations in each case ultimately resulted in Consent Decrees in 2020, both of which have now been approved by the court. Monitoring of Harvard and MIT’s respective compliance with the terms of the Consent Decrees is ongoing.
American Council of the Blind, et al. v. Hulu LLC, No. 1:17-cv-12285 (D. Mass.)
DLC and Disability Rights Advocates represented the American Council of the Blind, Bay State Council of the Blind, and two individuals in litigation against Hulu, LLC to challenge the lack of accessibility features for individuals who are blind or have low vision to Hulu’s streaming service. On October 8, 2018, the Parties reached an agreement to ensure Hulu’s accessibility and settle the federal case. As part of a settlement agreement, Hulu will make its website and software applications accessible via screen readers and will provide audio description tracks for streaming content where possible. Counsel will be monitoring the agreement through January 1, 2022, during which period the court has retained jurisdiction.
AMICUS BRIEF – Moretalara v. Boston Housing Authority
DLC and the AARP filed an amicus brief in this Massachusetts Appeals Court case in August 2020 regarding the need for formal and informal caregivers and home health aides among persons with significant disabilities. The case addresses the conflict between a housing authority’s obligation to provide a reasonable accommodation, including forbearance from eviction, under various civil rights statutes, and the housing authority’s right to evict an innocent head of household after a member of the household or guest is found with drugs on the premises. In the case, head of household had significant disabilities and needed overnight assistance from her children (who lived elsewhere) as caregivers. After one of the children allegedly brought drugs onto the premises, without the knowledge of the head of household, the housing authority brought an eviction proceeding against here. The Appeals Court issued a decision supporting the right of the tenant to bring a reasonable accommodation claim notwithstanding the federal “one strike” law. The court also affirmed the housing court’s decision without remanding the matter for additional fact finding.
AMICUS BRIEF – In the Matter of J.P., SJC-12872 (Impounded)
DLC, the Committee for Public Counsel Services, Mental Health Legal Advisors Committee, and the Center for Public Representation collectively wrote an amicus brief filed in March 2020. The Supreme Judicial Court issued a decision in October. Significantly, while the SJC declined to reach the sufficiency on the third “very substantial risk” of harm prong of the commitment standard after deciding the second prong evidence was sufficient, it chose to address a footnote in the Appellate Division decision opining that “homelessness, in and of itself, presents a very substantial risk of harm to a person,” satisfying the third prong of the civil commitment statute, “due to the risks of theft, abuse and violence” the homeless population faces. In keeping with our amicus arguments, the SJC rejected the Appellate Division’s footnote stating, “It is true that homelessness can mean a lack of safety and stability, but that does not mean that homelessness, in and of itself, is sufficient to support a finding of a very substantial risk of harm to the person himself or herself. If it is to be used at all as part of the involuntary civil commitment analysis, it must be done with extreme caution.” In the Matter of J.P., 486 Mass. 117, 124 (2020). The SJC then went on to state the various reasons that a person may become homeless and that the term “homeless” can mean many different things, referencing research and data cited in the amicus.
AMICUS BRIEF – Commonwealth v. Lawrence L. Heywood, SJC-12724
DLC and a Baltimore civil rights law firm, representing the National Federation of the Blind, jointly filed an amicus brief addressing the rights of blind jurors. The SJC solicited briefs to discuss when, if ever, blind jurors should be excluded in criminal cases that involve visual evidence.
AMICUS BRIEF – Joseph Buckman & Another v. Commissioner of Correction, et al., SJC-12725
DLC filed an amicus brief addressing interpretation of the medical parole statute established a mechanism to facilitate the release of Massachusetts state and county prisoners who are suffering from a “terminal illness” or “permanent incapacitation” “so debilitating that the prisoner does not pose a public safety risk.” M.G.L. c. 127, § 119A. In implementing the statute, DOC and the Executive Office of Public Safety and Security (EOPSS) place the burden on petitioners and their advocates to meet onerous requirements for petition submissions. Although eligibility requirements mean that, as a rule, qualifying prisoners will be persons with disabilities, DOC and EOPSS offer no system for effectively accommodating prisoners with disabilities to allow them equal access to the medical parole process.
AMICUS BRIEF – McLean Hospital Corporation v. Town of Lincoln, et al., SJC-12675
DLC and the Mental Health Legal Advisors Committee (MHLAC) filed an amicus brief in a challenging a narrow interpretation by the Land Court of the Dover Amendment, a provision in M.G.L. c. 40A, which governs zoning for educational programs. The case involves a McLean Hospital residential program teaching dialectical behavioral therapy (DBT) to individuals with behavioral challenges. The case has broad implications for the siting of programs for people with intellectual, developmental, and psychiatric disabilities. The SJC vacated the Land Court’s judgement and remanded for entry of judgement in favor of McLean, finding that the residential programs offered “a specialized form of education, with therapeutic aspects, that ultimately teaches its participants the skills necessary for their success, ‘activity and usefulness in life.’” McLean Hosp. Corp. v. Town of Lincoln, No. SJC-12675, 2019 WL 4582922, at *7 (Mass. Sept. 23, 2019)
Disability Law Center v. Commissioner of Correction, et al., No. 1:07-cv-10463 (D. Mass.)
DLC partnered with Prisoners’ Legal Services, the Center for Public Representation, Bingham McCutchen, and Nelson Mullins to challenge the practice of confining Massachusetts prisoners with mental illness in DOC segregation units, including the Departmental Disciplinary Unit to which prisoner can be sentenced to terms of solitary confinement up to ten years. After almost five years of litigation, the parties entered into a settlement agreement in November of 2011 requiring the DOC to create and maintain sufficient secure treatment units to house prisoners with serious mental illness who would otherwise be in solitary confinement. The settlement agreement sunset at the conclusion of three years of monitoring, but the key parts of the agreement protecting people with mental illness from prolonged solitary confinement have been incorporated into a statute. See M.G.L. c. 127, § 39, as amended in January 2015.
Fleet National Bank Talking ATMs Settlement Agreement
In 2000, DLC and Attorney Lainey Feingold represented Bay State Council of the Blind, the National Federation of the Blind of Massachusetts, and eight blind and visually impaired individuals entered in structured negotiations with Fleet Bank to address accommodations that would allow people with visual impairments to effectively use the public equipment owned by the bank. On February 28, 2001, the parties entered into a settlement agreement in which the bank agreed to install Talking ATMs, give blind people braille bank statements, and make its website accessible to blind and visually impaired persons. It resulted in the first Talking ATMs in New England, a comprehensive alternative formats policy, and was only the second agreement in the United States to require that a bank’s website be accessible. In June 2003, the parties entered into a supplemental agreement. Under this document, the bank agreed to install Talking ATMs at all of its locations. The bank also agreed to give blind people headphones for the talking ATMs. Fleet was later bought by Bank of America, a bank with more than 11,000 Talking ATMs, in 2008.