Does an advocate for people with disabilities have standing to sue a hotel she believes is in violation of the Americans with Disabilities Act — even if she doesn’t intend to stay there? On Oct. 4, the Supreme Court of the United States will hear arguments in Acheson Hotels, LLC v. Laufer, a case that will consider who may bring suit against violators of Title III of the ADA and could influence the way disability rights are enforced long into the future.

Signed into law by President George H. W. Bush in 1990, the Americans with Disabilities Act requires public and private institutions that provide public accommodations – such as restaurants, retail stores, schools, and hotels – to be accessible to people with disabilities. For places that offer lodging, this has been interpreted to mean that hotel owners and operators must offer enough information through its reservation services to allow potential customers with disabilities to decide if the business meets their needs.

In 2020, Florida resident Deborah Laufer, who uses a wheelchair, visited a website for a hotel in Maine and found that it did not detail accessibility information as required by the ADA. She sued, one of several hundred lawsuits she has filed over the years as an ADA “tester” – a role that has long been recognized as important to the enforcement of civil rights laws for non-disabled plaintiffs in areas like housing and employment, says Michael Ashley Stein ’88, a visiting professor of law and executive director of the Harvard Law School Project on Disability.

Critics, including attorneys for the defendant, Acheson Hotels, argue that Laufer lacks Article III standing to bring her case because she had no intention of staying at the hotel and therefore, in their view, suffered no harm. But Laufer and disability rights allies counter that lack of access to information that would enable Laufer to fully participate in society, as required by the statute, is itself a stigmatic and dignitary harm.

Stein recently spoke with Harvard Law Today about how disability rights laws are typically enforced, the arguments for and against standing, and how the case might impact disability advocacy moving forward.

Harvard Law Today: How are civil rights laws enforced outside of the Department of Justice?

Michael Ashley Stein: Beyond the Department of Justice and other government attorneys such as those working at the Department of Education or the Department of Housing and Urban Development, there exists a network of disability rights cause lawyers and like-minded public interest lawyers who pursue justice and social inclusion for people with disabilities through federal and state lawsuits. There are also lawyers who use private law – torts, contracts, etc. – as a means of extracting damages and thereby precipitating social change on behalf of the group.

HLT: How does all that work within the context of the Americans with Disabilities Act?

Stein: Historically, the Department of Justice has been active across the race and sex contexts, enforcing exclusions from employment and places of public accommodation. With the ADA, it feels somewhat different to me in that the Department of Justice has yet to bring large scale employment-related cases based on statistical discrimination. This might be due to a convention of not using testers to establish these cases. Within the realm of public accommodation, the Department of Justice has focused on pushing systemic changes by eliciting settlements, and they’ve been very successful while focusing on high profile places such as the Empire State Building or against the family-owned corporation that owns a large number of hotels and motels across the U.S. and were not permitting guide dogs due to their asserted Islamic beliefs. So we’ve seen progress from these lawsuits. But we’ve also seen that there are an awful lot of places that they don’t reach – all the stores, hotels, inns, etc. that by statute are subject to the ADA but have neither complied voluntarily nor been compelled to do so through the courts. That’s where people like Laufer feel they can make a contribution.

HLT: What are the arguments for and against these private enforcement lawsuits?

Stein: On the disability compliance side, backers argue that the ADA has been out there for 33 years, and the requirement is that you post the information relating to access on the website so that people can know. They would note that the legal requirement of adding a line or two to a website falls far short of the costs of retrofitting the physical plant or paying attorneys to litigate the case all the way up to the Court. They would likely also add that the ADA, civil rights generally, and plain decency mandate that persons with disabilities, much like anyone else, should be able to go to hotels, restaurants, clubs, or whatever, just like everybody else. On the other side of the ledger, there is a strongly asserted argument that many of these access suits are being brought, and especially in places like California and Florida, as part of an agenda of serial lawsuits. That they are a money-making scheme, to the extent that they say, ‘look, we’ve got you, you’re going to lose, but if you pay a small fee, we’ll show you how to make your place accessible, which you should have already done anyway.’

HLT: Where do the circuit courts sit on the issue of whether a violation of the ADA is automatically an injury?

Stein: Within the context of disability and ADA Title III, courts are basically split as to whether a statutory violation – meaning that a given place of public accommodation is not accessible, or has not posted accessibility information – can cause a cognizable stigmatic injury. The Second Circuit has the view that mere unequal treatment or violation does not necessarily demonstrate discrimination, while the Seventh Circuit actually is more progressive in that respect. But the circuits unanimously agree that a statutory violation in the case of exclusion of individuals on the basis of race is a cognizable stigmatic injury. So, one question that arises is, why is it not okay in the case of race, but according to some circuits, it is okay, or at least not cognizable as a stigmatic injury, within the context of disability?

HLT: What are Laufer’s best arguments for why she, and testers like her, should have standing in these kinds of suits?

Stein: Her best argument is that the ADA is a civil rights mandate, and its fundamental purpose is the same as any other civil rights statute. I’ve been writing about this for decades and it’s now considered mainstream among academics, but sadly many employers and owners of places of public accommodation continue to flaut the law and assert all kinds of justifications that lack empirical bases and so should be seen as arising from prejudice. Laufer would argue that after 33 years of the ADA, ‘how much clearer can you be, then that this harm should be recognized?’

HLT: And what about Acheson Hotels? What are they likely to argue about standing?

Stein: Acheson and allied critics will point to the individual herself not actually showing up at the hotel, not actually intending to stay at the hotel, and say it’s a fishing expedition to raise the suit and gain damages. No harm, no foul.

HLT: How will the Supreme Court evaluate this case?

Stein: The Court could go several ways on this. It could be highly procedural and say that because the plaintiff was not herself actually injured, she lacks standing to bring the suit. They could do what they’ve often done in other contexts, where they’re not receptive to upholding civil rights, and frame matters in terms of deference to Congress, pointing out that the ADA itself does not have reference to testers, and therefore in a narrow view, that there is not the ability to bring this suit.

They could question how concrete the harm is. An amicus brief by law professors argues that the very fact of a person with a disability asking if something is accessible and being rebuffed is itself a harm, as well as a signaled stigmatic harm that that individual and others like her with disabilities are not themselves welcomed in these places.

The Court might also say that the case is moot because Laufer is no longer attempting to stay at the Maine inn.

HLT: Are there any recent precedents we should look at?

Stein: Over the last couple of years, there have been a few cases that have gone up to the Court on cert, and a few that were withdrawn by pressure from the disability rights movement. The most recent adjudicated one, Cummings v. Premier Rehab Keller, P.L.L.C., had to do with whether you could essentially borrow from other civil rights statutes to generate damages in a public accommodations case that had to do with a deaf blind woman wanting to receive physical therapy. There, the Court said, ‘Well, it’s not within the ADA.’ The year afterwards, they followed that with similar reasoning in a case that was not about disability. So, you could say that a negative result in Laufer or Cummings isn’t about ableist anti-disability or anti-civil rights norms, but rather is the result of the type of statutory reading that is consistent from the Roberts Court and going back into the Rehnquist Court. And so, these cases are not disability-specific, but rather the product of parsimonious legislative reading. You could even bolster this narrative by pointing to the pro-disability result of the very close textualist reading underlying the 2023 case Perez v. Sturgis Public Schools, where the Court said that if a plaintiff was bringing a case within the Individuals with Disabilities Education Act because their child was not given an appropriate education, they are not barred from also bringing an ADA case for damages.

HLT: What do you think the Court will do, and what impact might that have?

Stein: I would guess that the Court will go the procedural route and dismiss the case on standing grounds. The response to a finding of lack of standing would be to actually find plaintiffs who really want to stay at that hotel and bring another suit.

Parenthetically, one could note that if the Court uses a narrow application of standing doctrine here, that its application of Article III standing doctrine seems conveniently selective, meaning that if the Court is willing to adjudicate the recent student loans decisions and/or the pending mifepristone challenge but not Laufer’s claim, then they seem to be disfavoring standing claims they disagree with on the merits. That raises questions of equity, if not legitimacy.

Should the Court do the opposite and find that Laufer has standing, then it opens the door to having a great number of private attorneys general, public interest firms, and disability rights firms filing suits. Those who don’t like the idea would refer to it as serial litigation and profit mongering, and those who view it as civil rights enforcement and social justice would be in favor of it.

HLT: Finally, in your view, how much progress in disability access has the U.S. made since the ADA was passed?

Stein: All the studies that have been done by the National Council on Disability and other entities, and just anecdotally as a first-person observer, indicate that the U.S. has done tremendous work, especially in large urban centers, on making the physical world accessible. It’s not as quickly as many of us would like, and there are unconscionable digital world exclusions, but if we look at things from a bird’s eye view, there is already a consciousness about the ADA being part of the fabric of our society; there are ADA rooms in hotels, buses and trains are supposed to be accessible, etc. This is an expectation that wasn’t there before. And the actual access, while imperfect in many places, is dramatically different than when I was attending HLS before the ADA.

What still needs to be done? Ensuring that new construction, especially housing, be built accessible; pressing for accessibility compliance on websites, both those privately owned and those operated by our federal and state and local governments; guaranteeing voters the ability to cast their ballot; increasing access to health care; reaching into rural areas, etc. So, there are lots of things that can be better, but I think we’re absolutely on the right track and feel very fortunate.