Deaf Access to Legislative Sessions Debated in 11th Circuit

MIAMI (CN) – Lawyers for Florida dug in their heels Wednesday in an 11th Circuit battle over the state’s refusal to provide deaf people with closed captioning on online videos of legislative sessions. 

The underlying case involves claims by the National Association of the Deaf and a hearing-impaired disability rights activist named Eddie Sierra, who says Florida’s refusal to provide close captioning for legislative proceedings violates federal law, including Title II of the Americans with Disabilities Act. 

Title II makes it illegal for local governments to discriminate against disabled people when providing “services, programs, or activities.”

Florida has claimed the closed captioning would be cost prohibitive. It has gone so far as to threaten to cut off video streaming of legislative proceedings in response to the demand for closed captioning. 

The public college Florida State University is named as a co-defendant. Both FSU’s and the Florida Legislature’s websites show the legislative sessions without closed captioning. 

On appeal is a federal court order denying Florida’s motion to dismiss the lawsuit. That court rejected Florida’s argument that the state is entitled to 11th Amendment sovereign immunity protections, which shield state governments from civil liability in federal court. 

“Plaintiffs are not seeking just any public information, but rather information that goes to the very heart of the democratic process: the text of legislative proceedings,” U.S. District Judge Ursula Ungaro wrote in the June 2018 order.

The appeal is being fielded by U.S. Circuit Judges Beverly Martin and Gerald Tjoflat of the 11th Circuit and U.S. Circuit Judge William Traxler, sitting by designation from the Fourth Circuit. The Atlanta-based appeals court held a special hearing Wednesday in Miami.

The National Association of the Deaf wrote in a brief to the panel that Florida frames itself as a leading state in public records access and open government, but has been aggressive in its refusal to provide accommodations to deaf citizens who need accommodations. 

“Defendants boast about the availability of legislative proceedings that they broadcast to the public at large yet would deny individuals who are deaf or hard of hearing that same opportunity to meaningfully observe and participate in Florida’s representative form of government,” the association’s brief says. 

Florida’s attorneys for their part claim that if upheld, the lower court ruling would “dramatically expand … congressional authority” to limit state sovereign immunity. 

During Wednesday’s hearing, Christopher Baum, a lawyer for the state, pointed to U.S. Supreme Court precedent in Houchins v. KQED, which found there was no inherent constitutional right of access to “government information or sources of information within the government’s control.”

Baum and his co-counsel have acknowledged that laws such as the federal Freedom of Information Act and the Florida Public Records Act provide for comprehensive public records access requirements. But those laws, they argue on appeal, don’t imbue a fundamental, constitutional right whose violation would justify overriding state sovereign immunity. 

The state’s lawyers further claim that the district court erred in finding that Title II as applied here is a “congruent and proportional response” to the alleged discrimination, a showing necessary to justify doing away with Florida’s sovereign immunity in federal court. 

Arguing for the National Association of the Deaf, attorney Courtney Cunningham blasted the state’s lawyers for calling access to legislative proceedings an issue of “relative unimportance” in their brief. 

“In providing hearing citizens access to legislative proceedings, and denying that same access to people who are deaf and hard of hearing, the appellants strip my clients of a fundamental right to participate in our representative democracy,” Cunningham told the panel.

Cunningham quoted from the preamble to the Americans with Disabilities Act, which states that disabled people have been subjected to a “history of purposeful unequal treatment” while being “relegated to a position of political powerlessness in the society.”

“That is very literally the issue presented in this case: access to participate in the democratic process,” Cunningham told the panel.

The National Association of the Deaf maintains in its brief that even if the rights of access at issue are not deemed constitutional or fundamental, the court can still abrogate Florida’s sovereign immunity.

The parties are also in dispute over whether Florida’s lack of closed captioning contravened the Rehabilitation Act, which applies to government programs and activities which receive federal financial assistance. 

It is unclear when the 11th Circuit panel will issue a decision in the case.

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