IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

THE UNITED STATES OF AMERICA, )

) CV-92-2879 (TFH/AK)

Plaintiff )

)

v\. ) CORRECTED MEMORANDUM OF

) POINTS AND AUTHORITIES

BECKER CPA REVIEW, LTD., ) IN SUPPORT OF

) UNITED STATES\' MOTION FOR

Defendant ) PARTIAL SUMMARY JUDGMENT

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

Defendant Becker CPA Review, Ltd. (\"Becker company\"), which operates a
preparation course for the certified public accountant (\"CPA\")
examination, has violated title III of the Americans with Disabilities
Act of 1990 (\"ADA\"), 42 U.S.C. §§ 12181-89, by failing to provide
appropriate auxiliary aids and services for people with hearing
impairments. Although the Becker company changed its policies and
practices in December 1992 in response to this litigation, the policies
as modified continue to violate the ADA.

The United States has moved for partial summary judgment on the issue of
liability. Undisputed facts establish that the Becker company has
engaged in a pattern or practice of discrimination on the basis of
disability and, in particular, that it has discriminated against Rod
Jex, an individual with a hearing impairment. Therefore, the United
States is entitled to a declaration that the Becker company violated the
ADA, an injunction, civil penalties, and damages for Mr. Jex.[^1]

The Becker company\'s policies and practices demonstrate a pattern or
practice of discrimination prohibited by the ADA. 42 U.S.C. §
12188(b)(1)(B)(i). Companies like the Becker company must provide
auxiliary aids and services that are appropriate for effective
communication. 42 U.S.C. § 12182(b)(2)(A)(iii). In fact, the ADA has an
entirely separate section requiring entities, like the Becker company,
that offer courses related to licensing and credentialing, to provide
appropriate auxiliary aids and services. 42 U.S.C. § 12189.

The Becker company is an industry leader in CPA preparatory courses. The
Becker course is structured to be classroom-intensive, with taped
lectures, live instruction, problem-solving exercises facilitated
through projected transparencies, and generous interaction among
students and instructors. In order to understand and participate in the
Becker course, students with hearing impairments who regularly use sign
language in educational or professional settings need sign language
interpreters in class. Others may need other types of accommodations.

Prior to this litigation, the Becker company refused to provide sign
language interpreters and other appropriate auxiliary aids and services.
During this litigation the company has generally provided interpreters
on demand, but it has no lawful written policy that will guide the
company\'s future actions. The company has several contradictory
policies, all of which are arbitrarily administered. The company\'s
failure adequately to modify its policy violates a specific prohibition
of the ADA, 42 U.S.C. § 12182(b)(2)(A)(ii). The Becker company also
violated the ADA\'s requirements that people with disabilities be given
equal opportunities to participate in and benefit from its services. 42
U.S.C. §§ 12182(b)(1)(A)(i) and (ii). Defendant\'s conduct also violates
several sections of the title III regulation, 28 C.F.R. pt. 36 (1992).

This case is quite simple. The ADA requires that the Becker company
provide appropriate auxiliary aids and services. The company
consistently has failed to meet this obligation. At least one person,
Rod Jex, was injured as a result of these failures.

**I. Facts**

The record in this case amply establishes that the Becker company\'s
past and present policies, as well as its actions with respect to Rod
Jex, violated the ADA.[^2]

**A. Some people need sign language interpreters for effective access to
the Becker course.**

1\. [Interactive aural communication in class is an important aspect of
the Becker course]{.underline}.

The CPA examination is one of the most difficult professional tests
given in this country. A CPA license is considered to be a valuable and
prestigious career asset for an accountant, enabling the accountant to
perform certain tasks and investing the accountant with the mantle of a
\"professional.\" Facts ¶¶ 2, 4 (Becker Depo.). A CPA license is an
essential requirement for partnership in major accounting firms. Facts ¶
5 (Bendick Depo.).

The Becker company is an industry leader. More than one third of the
students passing the CPA exam each year are Becker course graduates. Its
course is offered in more than 120 cities to 10,000 people each year.
Facts ¶¶ 7, 8.

The Becker course has been offered in the D.C. metropolitan area in
sessions of various lengths and intensities. Each weeknight class lasts
approximately four hours, while Saturday classes are eight hours long.
The sessions in each city involve the same audiotapes, transparencies,
outlines, and homework. Potential customers are offered the opportunity
to attend approximately two weeks of introductory classes at no
obligation. Facts ¶ 9. The accounting information covered in the Becker
course is exceedingly difficult and voluminous. Facts ¶ 11 (Baisey
Depo.).

Promotional materials for the Becker course tout it as \"one of the most
sophisticated learning programs available\" in the world. Students are
expected to learn almost all the course material in class. They are not
expected to prepare for each class ahead of time or to do extensive
homework. Company materials emphasize that \"you work hard, but you work
hard [in class]{.underline}.\" Facts ¶¶ 14-15.

In most Becker classes, instructors, who are either lawyers or CPA\'s,
distribute handouts and play tape recorded lectures. Instructors
interrupt on cue from the \'J-notes\'[^3] or to support, reinforce, or
illustrate a point through personal knowledge. Instructors sometimes
direct the students to work through sample exam questions displayed by
overhead projectors. Instructors may reject any or all of the teaching
materials provided by the Becker company. The company acknowledges that
it does not control how the instructors teach their classes. Facts ¶¶
16-25.

One of the strengths of the Becker course is its interactive aural
communication. Students learn new material and obtain reinforcement
under the guidance of knowledgeable instructors. Instructors lead
discussions about sample exam questions, supervise students\' written
work, answer questions, and illustrate complicated accounting concepts
with real-life stories. Facts ¶¶ 18-22. Mr. Becker characterizes his
system as one that \"has more interaction than any other system.\" Facts
¶ 12 (Becker Depo.). The company emphasizes that the \"live instructor
adds energy, personal support and clarification where needed.
Educational research has proven this to be the most effective
combination, and we\'ve been doing it for 30 years now.\" Facts ¶ 23.
Students\' experiences confirm that there are many interruptions to the
recorded lectures. Facts ¶¶ 22, 58-59.

2\. [Appropriate auxiliary aids and services in this setting may include
interpreters, assistive listening devices, student assistants, and
transcripts of audio tapes]{.underline}.

Individuals with hearing impairments[^4] rely on a variety of aids and
services, depending on the severity of their impairment and their level
of experience with various aids and services. Some communicate with sign
language, others do not. Facts ¶ 26 (Kaplan Dec.).

Some people with hearing impairments never master sign language. People
who use sign language do so to facilitate communication both in
conveying and receiving messages. When the communication is with a
person who does not know how to sign, sign language interpreters are
often necessary. An interpreter \"signs\" the hearing person\'s words to
the person with a hearing impairment by using specific gestures, body
movements, and other visual cues. The interpreter also voices the signed
communication. Facts ¶¶ 27-29 (Kaplan Dec.).

Oral interpreters are helpful to some people with strong lipreading
skills. Oral interpreters assist by standing in front of persons with
hearing impairments and mouthing, in a clear and distinct manner, the
words spoken by other individuals. Oral interpreters repeat phrases as
necessary so that messages are fully conveyed. Individuals using oral
interpreters typically may use their voices. Facts ¶¶ 30-31 (Kaplan
Dec.).

People with lesser degrees of hearing loss may use other types of
assistance. Some may be unable to hear, but able to speak, due to
extensive speech therapy in childhood or development of spoken language
before their hearing loss. [See]{.underline} Facts ¶ 88 (Bergman Dec.).
Amplification or assistive listening technologies may aid some people.
Written communication, notetakers or student assistants, transcripts, or
computerized communication tools may help others. Even for people with
some hearing, though, interpreters may be necessary to translate
others\' spoken words. In all cases, one key to effective communication
is recognition of the person\'s communication needs. Facts ¶¶ 26, 33
(Kaplan Dec.).

> 3\. [Some people need sign language interpreters for meaningful access
> to the Becker course]{.underline}.

When a person with a hearing impairment communicates face-to-face with
one other person and the communication is not lengthy or complex, he or
she may communicate effectively by speaking and lipreading. Deriving any
benefits from lipreading becomes impossible, however, when the speaker
is not close to and directly in front of the person with a hearing
impairment. In classroom settings, where instructors may turn their
heads toward other students or toward visual aids such as projected
transparencies, lipreading becomes more difficult and may become
impossible. In interactive environments with many speakers, even
experienced lipreaders can become easily confused. Facts ¶¶ 32, 34
(Kaplan Dec.).

Many people with hearing impairments can generally derive effective
communication of aurally delivered messages only through sign language.
Sign language interpreters are most necessary when communication is
complex. Particularly given the complicated and technical nature of the
accounting concepts taught in the Becker course, each word spoken by
lecturers can be essential to giving students full comprehension of the
accounting material. If people with hearing impairments do not use their
voices, they may desire interpreters or other appropriate auxiliary aids
or services in order to ask questions. Facts ¶¶ 27-29 (Kaplan Dec.).

Without appropriate auxiliary aids and services, students with hearing
impairments cannot engage in most class interaction. Non-interactive
classes are less effective for students with hearing impairments than
are interactive classes such as the ones generally provided to Becker
students. Students generally learn a great deal more through discussion
than they do by reading alone. They comprehend much less when their
questions are not answered immediately. Students with hearing
impairments must wait until breaks when some of their questions may be
answered in a cursory fashion. There is little benefit to having live,
knowledgeable instructors unless students\' questions can be asked in
context and in a timely manner. The interactive nature of the Becker
course, its length, and the difficulty of the subject matter combine to
make it impossible for most people who use sign language to realize
effective communication of the course contents without the aid of sign
language interpreters. Facts ¶¶ 35-41, 95.

**B. Throughout 1992, the Becker company had a policy to provide only
limited auxiliary aids, not including interpreters.**

The ADA\'s prohibitions of discrimination became effective as to the
Becker company on January 26, 1992. Facts ¶ 6. Throughout 1992, the
company\'s policies and practices denied sign language interpreters to
deaf persons and failed adequately to accommodate others with hearing
impairments. On August 19, 1992, the Becker company issued a memorandum
concerning accommodations to be provided to students with hearing
impairments. Despite the company\'s stated acknowledgment of its duty
under the ADA to understand each student\'s \"disability and special
needs,\" and to accommodate each individual according to his or her
disability, the policy articulated in the memorandum suggested that the
company would provide only limited types of auxiliary aids and services:
earphones to the tape recorder, the \'J-notes,\' a seat next to the
instructor, and discussions with the instructor at breaks.[^5]
Interpreters were not mentioned as a possible accommodation. Facts ¶ 41.

In fact, as detailed below, the Becker company had an unwritten policy
against the provision of interpreters. Becker representatives\' actions
and statements and the experiences of various students bear out the
reality that the headphones, \'J-notes,\' and transparencies were the
only types of \"accommodations\" ever provided prior to this suit,
regardless of individual students\' needs. Facts ¶ 54. Numerous requests
for other types of assistance were denied. Facts ¶¶ 42, 50, 52-54, 67,
68, 69, 70. Instructors rarely wrote out in-class discussions for
students with hearing impairments. Facts ¶¶ 40, 72, 89, 101, 111. In
more than thirty years of operation, the Becker company never provided a
sign language interpreter to any student until this litigation. Facts ¶¶
44, 76, 71.

Several Becker company employees have articulated their conclusion that
it was the company\'s policy during this time to deny all students\'
requests for sign language interpreters. For example, one Becker
employee, Renatta Dittmer, carefully researched her company\'s position
on sign language interpreters and discussed it with her supervisor,
Susan Eby, before stating that the Becker company does not provide
interpreters. Facts ¶ 52.

Consistent with this policy, the Becker company repeatedly refused
throughout the summer and early winter of 1992 to provide at least one
deaf individual, Rod Jex, with a sign language interpreter for the
Becker course. Although Mr. Jex repeatedly told Becker company personnel
why he felt that sign language interpreters were necessary to provide
him with effective communication, his efforts were fruitless.

Facts ¶¶ 45-50, 53.

Mr. Jex has worked as an accountant and intends to become a CPA. In
order to prepare for the November 1992 CPA examination, Mr. Jex wished
to attend the Becker course in the Washington, D.C., area during the
summer of 1992. Mr. Jex has severe to profound hearing loss. His
lipreading skills are above average and he is able to lipread with
limited comprehension in one-on-one conversations. Nonetheless, even
under the most favorable circumstances, he often has to ask a speaker to
repeat portions of a conversation. His disability impairs his
participation in discussions or lectures that are offered in group
settings unless the communications are conveyed through sign language.
In college, before he learned sign language, Mr. Jex used oral
interpreters for his classes. He now regularly depends on sign language
at work and in continuing education classes. Facts ¶¶ 46-49.

In May 1992, Mr. Jex first asked the Becker company to provide him with
a sign language interpreter so that he could participate in all of the
live verbal interaction offered in the Becker course. Facts ¶ 45. A
Becker company interviewer told him that \"Our City Coordinator tells me
that Becker does not supply interpreters.\" Facts ¶ 52. Mr. Jex\'s
repeated attempts to secure an interpreter in May and June were met with
similar refusals. Facts ¶ 50.

Even after the National Center for Law and the Deaf

(\"NCLD\")[^6] informed local representatives of the Becker company of
its obligations under title III of the ADA and its implementing
regulation, and after the request was evaluated by decision makers at
company headquarters, the Becker company refused to provide Mr. Jex with
a sign language interpreter. As provided by company policy, however,
Becker company personnel promised to

provide Mr. Jex with the \'J-notes\' and copies of overhead
transparencies for his use during each class. Facts ¶¶ 53-54.

In July 1992, Mr. Jex attended the first six complimentary classes of
the summer Becker course. He kept detailed notes of the frequency and
length of instructor interruptions to the tape and the number of student
questions of which he was aware.[^7] Mr. Jex had substantial problems
using the \'J-notes\' to learn the substance of the lectures. The
accommodations provided by the Becker company left him frustrated and
confused, with little comprehension of the course material. Facts ¶¶
56-61.

Mr. Jex had problems concentrating because he found himself so busy
trying to keep up with the taped lecture. He had to read at a rate much
faster than his normal reading rate. Facts ¶¶ 61-62.

After he tried three classes without an interpreter, Mr. Jex\'s wife,
Connie Spanton-Jex, who is a sign language interpreter, interpreted an
entire four-hour class at his request. As a result, Mr. Jex\'s
comprehension of the material increased greatly; he understood
everything the instructor said as well as the students\' questions. He
found that many of the live deviations from the taped lecture and the
\'J-notes\' were valuable insights that clarified the tape\'s contents.
Facts ¶¶

63-65.

On July 25, 1992, Mrs. Spanton-Jex interpreted only the live
communication.[^8] While the tape played, she indicated to Mr. Jex where
the class was in relation to the transcript. Mr. Jex found that with her
help he did not get lost. With an interpreter, he was able to ask a
question during class for the first time.[^9] Facts ¶ 66.

Without an interpreter, Mr. Jex could not participate in the summer 1992
class, but he did persist in his attempts eventually to take the class
and the CPA exam. In fall of 1992, Mr. Jex repeatedly requested that the
Becker company provide him with a qualified sign language interpreter
for the winter course, which began in January 1993. Again, each of Mr.
Jex\'s requests was refused. Facts ¶ 68.

In November 1992, attorneys for NCLD filed a complaint with the
Department of Justice alleging that the Becker company had

violated the ADA by refusing to provide Mr. Jex with a qualified sign
language interpreter. With impending litigation, in late December 1992,
the company decided, for the very first time in its history, to provide
a sign language interpreter. Facts ¶¶ 76-77. They did so for Mr. Jex
beginning in January 1993. Facts ¶ 71.

Mr. Jex\'s 1992 experiences were not unique. Another deaf student in the
D.C. area, Mark Summers, informed local Becker representatives that he
was deaf, and inquired about the company\'s provision of auxiliary aids
and services for persons with disabilities. He attended the Becker
course throughout the summer of 1992. After attending a few weeks of
classes, Mr. Summers requested a tuition reduction because of his
inability to participate in the class questions and answers. Facts ¶ 70,
72-3. Except on one occasion when Mr. Summers happened to attend the
same class for which Mr. Jex had brought his wife to interpret, Mr.
Summers had to rely exclusively on the \'J-notes,\' overhead
transparencies, and the willingness of instructors to communicate to him
through written notes. Facts ¶ 69. Like Mr. Jex, Mr. Summers found that
these methods did not provide adequate communication. Months later,
after this litigation was filed, when Mr. Summers took the repeat course
offered by the Becker company, the company eventually acceded to Mr.
Summers\' request for an interpreter. Facts ¶¶ 74, 76.

Sheila Palm[^10] is currently attending the Becker course in Des
Plaines, Illinois, and intends to take the CPA exam in November. She has
a profound hearing loss in one ear, and a fifty percent loss of hearing
in the other. She uses a hearing aid, communicates through sign
language, lipreading, and speach. She informed the Becker staff that she
used a sign language interpreter in college, and informed them that she
needed a sign language interpreter to fully participate in the Becker
course. She expressed a concern that without the assistance of a sign
language interpreter, she would not be able to interact with the other
students. She was not informed that the class would extensively use an
audiotape, and she was not offered the use of a sign language
interpreter. Instead, she brought her own interpreter, paid for by the
State of Illinois Department of Rehabilitation. Becker staff suggested
that she use the \'J-notes,\' but she declined to do so.

Mr. Jex and Mr. Summers have met with limited success on the CPA exam.
Both plan to take at least parts of the exam again in November 1993.
Facts ¶ 75.

**C.** **The Becker company as failed to institute a policy of providing
interpreters and other auxiliary aids and services when necessary.**

After the United States filed this action, the Becker company instituted
a temporary unwritten policy that it has stated will remain in effect
only while this suit is pending. Facts ¶ 76 (Becker Depo.). Under this
policy, students with hearing impairments may get sign language
interpreters on demand. For purposes of this discussion, this temporary
policy is called the \"interim litigation policy.\"

Since the United States filed suit, the Becker company\'s written and
unwritten policies and practices have undergone a series of
modifications. Despite these modifications, the company still does not
have a lawful policy to be implemented after the conclusion of this
suit. While it is difficult to discern the proposed \"official policy\"
from month to month, it is clear that none ensures that individualized
assessments will be conducted or that interpreters will be provided when
necessary. Facts ¶¶ 79-84.

Despite the interim litigation policy of providing an interpreter on
demand, headquarters sent a contrary written policy to Becker company
interviewers on March 26, 1993. It directed interviewers to say, in
response to inquiries about sign language interpreters, that, \"\[I\]n
appropriate circumstances and where reasonable, we will provide an
interpreter on a case-by-case basis.\" Further clarification would be
provided only after a student had made a request in writing. Facts ¶ 72.

Additional burdens were imposed by a policy issued in July 1993. A
student seeking an interpreter was required to first try the \'J-notes\'
and other traditional aids; it was then incumbent on the student to
prove to the satisfaction of the company why those aids did not provide
effective communication, and that there was no other way the course
could be modified to work for the student. Under the terms of this
policy, a student would qualify for a sign language interpreter only
[after]{.underline} he or she attended two classes. The company
consistently refused to conduct any individualized assessments. The
Becker company\'s denial of a student\'s request for sign language
interpreters was automatic and unchangeable prior to the first two
classes. At least one student who took the class under these
circumstances found it to be extremely frustrating and discouraging.
Facts ¶¶ 79-80, 102-10.

In September 1993, Mr. Becker changed the policies once again during the
course of his deposition. Asked to analyze the various policies, Mr.
Becker recognized the conflicts, and modified the policies yet again.
Facts ¶ 81 (Becker Depo.). At one point during his deposition, he said
he had thought that if students had experienced accommodations
\"similar\" to the \'J-notes\' and found the accommodation to be
ineffective, they would be given sign language interpreters without
having to try the \'J-notes\' for two class periods. Facts ¶ 82.
Clarification of this policy on October 4, 1993, however, points out
that a student must have had practically identical accommodations in a
practically identical type of course. This \"very similar\" experience
would include assistance from: (a) verbatim transcripts; (b) interject
notes; (c) handouts; (d) student assistants; and (e) availability of the
instructors at any time. The majority of the course material must be
review of college level accounting courses, information previously
learned by the Student. Facts ¶¶ 84-86.

**D. The Becker company has discriminated against students with hearing
impairments who do not use sign language as their primary method of
communication.**

The Becker company repeatedly failed to ensure the provision of
auxiliary aids and services for people who have hearing impairments but
do not rely on sign language interpreters, as illustrated by the
experiences of the following four students. Facts ¶¶ 88-101, 111.

Tim Bergman attended the Becker course in Madison, Wisconsin, from
June-October, 1992. He has a profound hearing loss, but due to extensive
speech training as a child, uses lipreading as a primary means of
receiving verbal communication. He found the \'J-notes\' difficult to
follow, confusing, and cumbersome. Mr. Bergman was unable to hear
students\' questions that were not repeated by instructors, and so could
not benefit fully from instructors\' explanations. He found that the
instructors often interjected their own experiences. Facts ¶¶ 88-89
(Bergman Dec.).

Deborah Mundell informed a Becker representative that she was an
excellent lipreader and could speak well; she asked to be seated near
the instructor in order to lipread effectively. She discovered at the
first class that a large portion of the lectures were on audio tape,
rendering her lipreading skills useless. The instructor was unaware that
a person with a hearing impairment was in the class, had received no
special instructions, often turned his back from her while speaking, and
did not repeat students\' questions for her. During the first class, she
requested the notes (the \'J-notes\') that she had seen him using, and
he reluctantly acquiesced. After several classes, he refused to give
them to her at all. Frustrated by her inability to follow the classes,
and under a doctor\'s orders to eliminate stress, she dropped out of the
17-week course after 13 weeks. She received no refund. Facts ¶¶ 90-97
(Mundell Dec.).

Cynthia Rohlin attended the Becker course in Rochester, New York, in
January 1992. Although deaf, she had extensive speech therapy as a child
and relies primarily on lipreading. She asked to sit close to the
instructor to increase her comprehension. Despite her request, no seat
was available in the front of the room when she arrived. No one had told
her of the extensive use of the taped lecture. She left that class and
demanded a refund. Becker personnel persuaded her that her needs would
be better accommodated in Buffalo, New York, an hour away. The classes
in Buffalo had not yet started, so she would not be behind her peers.
She was given the \'J-notes\' in Buffalo, but no student assistant
helped her follow the transcript. She was able to lipread some
instructors\' answers, but she missed the students\' questions, so the
answers did not make sense. No one wrote out the questions or answers
for her. Facts ¶ 98-101 (Rohlin Dec.).

George Kelly became deaf relatively late in life and wears hearing aids
in both ears.[^11] He can speak clearly. He knows some sign language.
Mr. Kelly attended the Becker course in Roanoke, Virginia, in
January-May, 1993. He was allowed to sit in the front row and was given
a set of \'J-notes.\' He used an FM transmitter and receiver system he
brought to class that was hooked into the cassette recorder, enabling
him to hear most of the taped lecture. He also lipread the instructor\'s
statements to the class. He found the \'J-notes\' very confusing. There
were charts and other information on them that did not appear on the
tape, and instructors would say things that were not on the tape. He
repeatedly lost his place. At no time did a student assistant help him.
Facts ¶ 111 (Kelly Dec.).

**II. STANDARD FOR SUMMARY JUDGMENT**

The undisputed facts demonstrate that the Becker company\'s policies,
practices, and treatment of Mr. Jex violate title III of the ADA. The
United States is, therefore, entitled to partial summary judgment as a
matter of law. Summary judgment is proper \"if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.\" Fed. R.
Civ. P. 56(c).

In making this motion for partial summary judgment, the United States
has the initial burden of showing the absence of a genuine issue of
material fact. [See]{.underline} [Adickes v. S.H. Kress &
Co.]{.underline}, 398 U.S. 144 (1970). Once the government has met its
burden by presenting evidence which, if uncontroverted, would entitle
the government to a directed verdict at trial, the burden then shifts to
Defendant to set forth specific facts demonstrating that there is a
genuine issue for trial. [Anderson v. Liberty Lobby, Inc.]{.underline},
477 U.S. 242, 250 (1986). If the factual context makes Defendant\'s
claim implausible, then Defendant must come forward with more persuasive
evidence than would otherwise be necessary to show that there is a
genuine issue for trial. [Celotex Corp. v. Catrett]{.underline}, 477
U.S. 317, 323-24 (1986); [Matsushita Elec. Indus. Co. v. Zenith Radio
Corp.]{.underline}, 475 U.S. 574, 586-87 (1986).

**III. STATUTORY AND REGULATORY SCHEME**

Title III of the ADA includes two broad provisions that apply to the
Becker company: section 302, 42 U.S.C. § 12182, which prohibits
discrimination by public accommodations, and section 309, 42 U.S.C. §
12189, which requires certain examiners and educators to offer their
services in a place and manner accessible to persons with disabilities.

Section 302 contains a general rule of nondiscrimination and several
specific prohibitions that define the contours of discrimination.
Section 302(a) provides:

> No individual shall be discriminated against on the basis of
> disability in the [full and equal enjoyment]{.underline} of the goods,
> services, facilities, privileges, advantages, or accommodations of any
> place of public accommodation by any person who owns, leases (or
> leases to), or operates a place of public accommodation.[^12]

42 U.S.C. § 12182(a) (emphasis added). [See also]{.underline} 28 C.F.R.
§ 36.201(a).[^13]

Section 302(b)(2)(A)(iii) and the Department of Justice\'s implementing
regulation, 28 C.F.R. § 36.303(c), specifically apply the mandate of
\"full and equal enjoyment\" to people with hearing impairments by
requiring public accommodations to take necessary steps to provide
appropriate auxiliary aids and services to their customers with
disabilities. Sections 302(b)(1)(A)(i) and (ii) require public
accommodations to ensure that people with disabilities participate
equally in and benefit equally from the goods and services they offer.
Finally, section 302(b)(2)(A)(ii) seeks to ensure the \"full and equal
enjoyment\" of goods and services to persons with disabilities by
requiring companies reasonably to modify their policies, practices, or
procedures.

Section 309 requires organizations like the Becker company that offer
courses related to professional licensing to offer their courses in a
manner accessible to people with disabilities. 42 U.S.C. § 12189. The
Department\'s implementing regulation, 28 C.F.R. § 36.309(a),
specifically applies this requirement to persons with hearing
impairments by requiring these entities to provide appropriate auxiliary
aids and services

**IV. ARGUMENT**

**A. The Becker company\'s policies and practices of denying
interpreters and other auxiliary aids and services violate section
302.**[^14]

1.  [The law places an affirmative obligation on public accommodations
    to take steps to ensure the provision of appropriate auxiliary aids
    and services]{.underline}.

The Becker company has violated section 302 by failing to take necessary
steps to provide appropriate \"auxiliary aids and services\" to persons
with disabilities. Section 302, in pertinent part, defines
discrimination as:

> \[The\] failure to take such steps as may be necessary to ensure that
> no individual with a disability is excluded, denied services,
> segregated or otherwise treated differently than other individuals
> [because of the absence of auxiliary aids and
> services]{.underline}\[.\]

42 U.S.C. § 12182(b)(2)(A)(iii) (emphasis added).[^15] The ADA defines
\"auxiliary aids\" to include, among other things, \"qualified
interpreters or other effective methods of making aurally delivered
materials available to individuals with hearing impairments; and . . .
other similar services and actions.\" 42 U.S.C. § 12102(1) (\"Auxiliary
aids and services\"). [See also]{.underline} 28 C.F.R. § 36.303(b)(1).

The Department of Justice\'s regulation includes several paragraphs
articulating this requirement in detail. 28 C.F.R. §§ 36.303(a)-(f).
Paragraph (c) requires public accommodations to provide appropriate aids
and services \"where necessary to ensure [effective
communication]{.underline}. . . . \" (emphasis added).[^16] This
emphasis on effective communication is consistent with the ADA\'s
definition of auxiliary aids and services quoted above, 42 U.S.C. §
12102(1), as those methods that are \"effective,\" and with the ADA\'s
legislative history. Congress specifically identified the effectiveness
of auxiliary aids or services chosen by public accommodations as a
\"critical determination\" in the assessment of whether they have
engaged in discrimination. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt.
3 at 59 (1990).

Section 302 is a call to action: public accommodations are to \"[take
such steps]{.underline} as may be necessary to ensure\" access by
providing appropriate auxiliary aids and services. 42 U.S.C. §
12182(b)(2)(A)(iii) (emphasis added). Covered entities should be
prepared to offer a variety of auxiliary aids and services when
necessary[^17] and to measure the effectiveness of specific auxiliary
aids or services by the needs of the particular individual using
them.[^18] [Cf]{.underline}. 42 U.S.C. § 12188(b)(2)(C)(5) (factor in
assessing civil penalties under title III is whether the entity \"could
have reasonably anticipated the need for an appropriate type of
auxiliary aid or service needed to accommodate the [unique needs of a
particular individual]{.underline} with a disability\" (emphasis
added)).

The effectiveness of a particular auxiliary aid or service turns
partially on the nature of the communication setting. Both

the title III regulation and the legislative history of the ADA
emphasize that the complexity and length of the communication at issue
are relevant to a determination of effectiveness, and address contexts
analogous to the Becker course. Congress explained that:

> While the use of handwritten notes may be effective to a person who is
> deaf in the context of shopping, it may not be an effective means of
> communication in a training session for employees . . . .

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3 at 59 (1990) (House
Committee Report). [See also]{.underline} 136 Cong. Rec. E1913, E1919
(May 22, 1990) (statement of Sen. Hoyer). The Department\'s Analysis is
similarly instructive:

> It is not difficult to imagine a wide range of communications
> involving areas such as health, [legal matters]{.underline}, and
> [finances]{.underline} that would be sufficiently lengthy or complex
> to require an interpreter for effective communication.

28 C.F.R. pt. 36, App. B at 594 (1992) (emphasis added). The Department
also states:

> In those situations requiring an interpreter, the public
> accommodations must secure the services of a qualified interpreter,
> unless an undue burden would result.

[Id.]{.underline} Absent a showing of an undue burden, a public
accommodation must provide sign language interpreters if that is the
only way to provide particular customers with effective communication.

Under section 504,[^19] courts have routinely ordered the provision of
sign language interpreters for persons with hearing impairments
participating in educational programs. [See]{.underline},
[e.g.]{.underline}, [Jones v. Illinois Dept. of Rehab.
Servs.]{.underline}, 689 F.2d 724 (7th Cir. 1982) (State must provide
interpreter services to deaf college student at State university);
[Camenisch v. University of Texas]{.underline}, 616 F.2d 127 (5th Cir.
1980) (State university must procure a qualified interpreter to assist a
deaf graduate student), [vacated and remanded on other
grounds]{.underline}, 451 U.S. 390 (1981); [Crawford v. University of
North Carolina]{.underline}, 440 F. Supp. 1047 (M.D.N.C. 1977) (deaf
graduate student had probable right to auxiliary aids such as
interpreter provided by the university); [Barnes v. Converse
College]{.underline}, 436 F. Supp. 635 (D.S.C. 1977) (deaf college
student had probable right to financial assistance for auxiliary aids or
services such as interpreter).

The Becker company, which offers a lengthy and complex course covering
legal and financial matters to prepare students for a difficult exam,
fell far short of meeting the ADA\'s requirements. In fact, the company
failed to take even minimally adequate steps to provide appropriate
auxiliary aids and services for students with hearing impairments.

2\. [The Becker company\'s blanket refusal to provide sign language
interpreters violates section 302\'s auxiliary aids
requirements]{.underline}.

The Becker company failed to ensure that its students with hearing
impairments received effective communication of its course. The Becker
company actually obstructed communication by resisting the efforts of
such students to obtain appropriate auxiliary aids or services. The
company flatly refused to provide or even discuss providing sign
language interpreters despite repeated requests by Mr. Jex and other
students.[^20] Students were in effect given a universe of only two aids
from which to choose: amplification, or \'J-notes\' and transparencies.
The Becker company did not take steps to ensure consideration of
individual students\' communication needs as required by the ADA. The
record reflects no attempt by the company to ascertain and meet the
particular needs of students with hearing impairments.[^21] The
company\'s refusal to provide sign language interpreters precludes
communication for people who communicate through sign language. All
possibility for interaction and contemporaneous understanding of
accounting concepts is foreclosed to profoundly deaf students who can
neither hear the content of the course nor speak to ask questions. The
complicated context of the Becker course is precisely the type of
situation in which the law requires specialized auxiliary aids or
services, as the regulation, cases, and legislative history cited above
indicate. The Becker company\'s total refusal to provide interpreters
contravenes the Department\'s guidance that a sign language interpreter
may be the only effective means of communicating complex and lengthy
material. [See]{.underline} 28 C.F.R. pt. 36, App. B at 594,
[supra]{.underline}.

In addition, as discussed in detail below under section B, the
\'J-notes\' and transparencies are an insufficient means of providing
effective communication for many students in this context. Requiring a
student with a hearing impairment to rely only on the set of
instructors\' notes defeats both aural and interactive learning in a
classroom setting; these are the salient features of the course
emphasized by the Becker company to distinguish it from its
competitors\' courses.

3\. [The Becker company discriminated against Mr. Jex by failing to
provide him with appropriate auxiliary aids and services.]{.underline}

In the spring, summer, and fall of 1992, the Becker company repeatedly
refused to provide Mr. Jex with a sign language interpreter.[^22] Mr.
Jex\'s experiences illustrate the rigidity of the Becker company\'s
refusal to provide sign language interpreters. As a result of the Becker
company\'s discriminatory behavior, Mr. Jex was denied effective
communication.

As a person who has a severe to profound hearing loss, Mr. Jex is an
individual with a disability protected by the ADA. 42 U.S.c. §§ 12102(1)
and (2). Mr. Jex relies upon sign language interpreters in educational
and professional contexts.[^23] Mr. Jex\'s initial claims to need a sign
language interpreter for effective communication in an educational
setting were later verified by his experience in the Becker course.

The \'J-note\' method utterly failed to provide him with effective
communication. Mr. Jex received only partial and confused communication
of the course\'s content. He understood little of the transcripts\'
contents because he had to rush through them to keep up with the class.
Additionally, he understood little of the verbal interaction that took
place around him.

When Mr. Jex eventually resorted to bringing his own qualified sign
language interpreter to class, he finally received effective
communication of the course and was able to ask questions. The
interpreter facilitated his communication both by signing and by helping
him follow along in the transcript. He did not have to rush through the
reading because he knew exactly

where the class was on the tape at all times. Mr. Jex\'s comprehension
improved dramatically with this assistance.

4.  [The Becker company continues to fail to take steps to provide
    appropriate auxiliary aids as required by section 302, as shown by
    its \"revised\" policies.]{.underline}

The Becker company\'s most recently-articulated policy requires any
student requesting auxiliary aids to try, instead, the \'J-notes\' and
other traditional aids; then the student must to prove to the
satisfaction of the company why those aids did not and cannot provide
effective communication, before the company will consider providing an
interpreter. But the law does not permit shifting the public
accommodation\'s legal duty onto the students. Rather the law places a
clear duty on the public accommodation to \"take steps to ensure\"
effective communication and to ensure that no substandard treatment
results from ineffective or inappropriate aids or services. 42 U.S.C. §
12182(b)(2)(A)(iii). [See also]{.underline} 28 C.F.R. pt. 36, App. B at
594.

The requirement that students try the \'J-notes\' before they are
provided with a sign language interpreter violates the auxiliary aids
requirements of section 302 because, like the Becker company\'s former
practices, it fails to provide for the particularized assessment
required by law.[^24] The Becker company

continues to violate the law by forcing [all]{.underline} students with
hearing impairments \-- regardless of the extent or nature of their
disability \-- to use the \'J-notes\' or nothing. Finally, the
\"revised\" Becker company policy fails in practice to ensure that no
different or substandard treatment results from the provision of
inappropriate aids and services. Complainants such as Theresa Kidwell
illustrate that the policy results in frustration, not education. Facts
¶¶ 102-10 (Kidwell Dec.). In addition, because students must spend time
trying the \'J-note\' method, to the extent that the method is
ineffective for them, they fall behind their peers.

The Becker company\'s most recent articulation of its policy \-- coming
just this week \-- has effectively foreclosed any student from the
opportunity to have an interpreter from the first day of class. For this
opportunity, an individual must represent \"that he or she has had a
[very similar]{.underline} experience\" to a Becker course. This
experience has been clearly defined to be (1) in a course the majority
of which is review of material covered in college level accounting
courses and previously learned by the student and (2) one in which the
student had assistance from verbatim transcripts, interject notes, and
handouts; student assistants; and availability of the instructor at any
time. Facts ¶ 84 (Interrogatory). The first element requires that the
student must already have taken an accounting review course. The second
requires what, according to Mr. Becker is an impossibility outside of
the Becker course, as he believes that his company is unique: it is the
only one in the world that will supply transcripts of the lecture in
advance of the lecture, particularly a transcript with recommended
instructor interjects. Facts ¶ 85 (Becker Depo.).

While the United States does not concede that the second element is an
accurate description of accommodations provided by the Becker course,
Mr. Becker thinks it is. The Becker company\'s approach is baffling. If
there is no course like the Becker course, then there is no student who
can meet this proof and receive interpreter services at the beginning of
the course. This most recent hurdle may be the company\'s greatest
procedural barrier yet to effective communication.

**B. Defendant denies students with hearing impairments opportunities
for equal participation in violation of section 302.**

Section 302 requires public accommodations to provide opportunities for
participation by people with disabilities that are equal to the
opportunities afforded others. Section 302(b)(1)(A)(i) forbids public
accommodations from denying persons with disabilities the opportunity to
participate in or benefit from the company\'s services. 42 U.S.C. §
12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a). Likewise, section
302(b)(1)(A)(ii) requires public accommodations to provide persons with
hearing impairments, like Mr. Jex, with an equal opportunity to
participate in or benefit from the company\'s services. 42 U.S.C. §
12182(b)(1)(A)(ii); 28 C.F.R. § 36.202(b). Like the requirement that
people with hearing impairments receive appropriate auxiliary aids and
services, these provisions seek to ensure that people with disabilities
receive \"full and equal enjoyment\" of the goods and services offered
by public accommodations.

Students with hearing impairments are entitled to participate equally in
the Becker course. Equal participation means equal access to all the
information conveyed in the classes, whether through pre-recorded
lectures, scripted or original interjects, or live conversations between
the students and instructors. Similarly, equal participation means that
students with hearing impairments are entitled to ask questions and to
have their questions answered in the classroom setting. Only by offering
these students an opportunity to prepare for the CPA examination that is
equal to the opportunity presented to other students can the Becker
company comply with the law. [See]{.underline} S. Rep. No. 116, 101st
Cong., 1st Sess. at 60 (1990) (\"\'Full and equal enjoyment\' does not
encompass the notion that persons with disabilities must achieve the
identical result or level of achievement of nondisabled persons, but
does mean that persons with disabilities [must be afforded equal
opportunity to obtain the same result]{.underline}.\") (emphasis added).
[See also]{.underline} H.R. Rep. No. 485, 101st Cong., 2nd Sess., pt. 2
at 101 (1990); H.R. Rep. No. 485, 101st Cong. 2nd Sess., pt. 3 at 55
(1990).

Courts have recognized under section 504 that the failure to provide
sign language interpreters forecloses from people with hearing
impairments the opportunity for equal participation. In [United States
v. Board of Trustees for the Univ. of Alabama]{.underline}, 908 F.2d 740
(11th Cir. 1990), the University, in defending its practice of denying
sign language interpreters to a student with a hearing impairment, took
the position that it offered to all students the same opportunity to be
educated and to earn a college degree, but that it did not guarantee
each student equal results. [Id.]{.underline} at 748. The court rejected
the University\'s argument, stating that \"in some instances the lack of
an auxiliary aid effectively denies a handicapped student equal access
to his or her opportunity to learn.\" [Id.]{.underline} The court went
on to state that a university offers benefits to its students, and that
in the case of a deaf student \"all access to the benefit . . . is
eliminated when no sign language interpreter is present.\"
[Id.]{.underline} To underscore the lack of access, the court drew a
parallel to the effect that all access to a course on the third floor of
a building is eliminated when no elevators are provided for a student
who uses a wheelchair. [Id.]{.underline} Similarly, in [Rothschild v.
Grottenthaler]{.underline}, 907 F.2d 286, 293 (2d Cir. 1990), the court
required a school district to provide the deaf parents of a hearing
child with sign language interpreters for certain school functions, so
that the parents\' opportunity to participate in their child\'s
education would be equal to the opportunity offered hearing parents.

Most Becker students receive a level of service designed to help them
best prepare for the CPA examination. Students who have hearing
impairments, but who do not have appropriate auxiliary aids or services
such as sign language interpreters, do not. Most Becker students may
engage in extensive class interaction. Students with hearing impairments
cannot. Most Becker students can have their questions answered as they
arise in the context of the presented material. Students with hearing
impairments must wait until the next break or after class; even then
their questions may not be answered. Most Becker students receive the
benefit of hearing about the practical experiences of their instructors,
and receive personal, individualized assistance during class. Without
the aid of interpreters or other appropriate auxiliary aids or services,
students with hearing impairments are excluded from this exchange.

The Becker company\'s refusal to provide Mr. Jex with a sign language
interpreter denied him the opportunity to participate in the services,
privileges, and advantages of the Becker course.

Without an interpreter, Mr. Jex was deprived of one of the essential
ways in which other students participate in the course. Although the
correct answers and explanations of wrong answers of in-class problems
are projected onto a screen during class, it was Mr. Jex\'s experience
that instructors often elaborated on these explanations. Lacking direct,
immediate access to these verbal explanations, Mr. Jex was largely
denied instructor feedback and affirmation. Without a sign language
interpreter, he could not ask questions or have access to instructors\'
answers during the lectures. As demonstrated above, having to wait to
ask his questions during breaks or after class deprived him of the
meaningful context of the questions and rendered what might have been an
illuminating exchange of information an exercise in frustration.

When Mr. Jex was relegated to using the \'J-notes\' and transparencies,
he was effectively reading a book alone in another room, not taking a
class. He was denied any meaningful opportunity to participate actively
in the classes. In this respect, the \'J-note\' method of accommodation
parallels, to some degree, the experiences of hearing students who are
making up missed classes. A student sits alone in the make-up room,
listening to the taped lecture and referring to the transparencies and
handouts. The company limits make-up classes to 20 per cent of the total
classes, because of the acknowledged inadequacies of this method of
learning: a student on his or her own without having people around and
with no outside stimulus tends to become bored and unfocused, and to
skip materials and problems. Facts ¶ 87 (Becker Depo.). Even in Mr.
Becker\'s view, then, merely listening to or, for a person with a
hearing impairment, reading his taped lectures is not an effective
substitute for the live classes.

In fact, the \'J-note\' method of accommodation is akin to requiring
students with hearing impairments to settle for a different educational
product altogether. [See]{.underline} 42 U.S.C. § 12182(b)(1)(A)(iii).
It requires some individuals to participate in separate or different
programs and denies them the opportunity to choose otherwise.
[See]{.underline} 42 U.S.C. § 12182(b)(1)(C). Other students do not
receive \'J-notes.\' Other students are provided with the highly
interactive learning environment that the Becker press release claims
results from substantial research into the most effective methods of
education. Indeed, the features that the Becker company claims
distinguish its course \-- intensive learning in class, no advance
preparation, problem-solving, support, and individualized attention \--
are absent from the \'J-note\' accommodation. Thus, even had the
\'J-notes\' provided Mr. Jex with an effective road map of the course,
which they did not, they would remain inadequate as a substitute for the
dynamic, interactive learning environment that the Becker company offers
to other CPA candidates.

**C. The Becker company has failed to make reasonable modifications to
its policies, practices, and procedures in violation of section 302.**

Section 302 prohibits public accommodations from failing to make
reasonable modifications to its policies and practices in order to
afford people with disabilities with equal access to its services. 42
U.S.C. § 12182(b)(2)(A)(ii). [See]{.underline} 28 C.F.R. § 36.302(a).
Policy modifications must be made unless the entity can demonstrate that
making them would fundamentally alter the nature of the services
provided. [Id.]{.underline} This section, like the specific prohibition
against failing to provide auxiliary aids and services, is a practical
mandate designed to further the goal of full and equal enjoyment.
[See]{.underline} 28 C.F.R. pt. 36, App. B at 591 (1992).

Here the law basically requires policies and practices that offer a
broad range of categories of auxiliary aids and services, in order to
afford to students with hearing impairments the services and advantages
offered to others. None of the modifications suggested here would even
appear to result in a fundamental alteration of the course. To the
contrary, Becker\'s continuing policies impose a fundamentally altered
class experience on people with hearing impairments.

It is reasonable to require the Becker company to institute a policy in
which it recognizes that the nature of its course requires auxiliary
aids and services that may include, in appropriate circumstances, sign
language interpreters.

It is reasonable to require the Becker company to institute a procedure
for making individualized assessments of its students with hearing
impairments to determine which auxiliary aids and services would provide
them with effective communication. It is reasonable to require the
Becker company to provide adequate training to the limited number of
personnel who are responsible for making these individualized
assessments. It is reasonable to expect the company to disseminate an
adequately revised policy to all company personnel who come into contact
with students. It is reasonable to require the company to provide sign
language interpreters and other appropriate auxiliary aids and services
to students who need them for effective communication.

Since the initiation of this suit, the company has provided sign
language interpreters for several students with hearing impairments,
including, but not limited to, Mr. Jex, Mr. Summers, and Ms. Kidwell.
The company has never presented any factors preventing it from similarly
supplying sign language interpreters in the future.

D.  **The Becker company has failed to comply with section 309\'s
    specific requirements for examinations and courses.**

Section 309 of the ADA requires that:

> Any person that offers examinations or courses related to
> applications, licensing, certification, or credentialing for secondary
> or post-secondary education, professional, or trade purposes shall
> offer such examinations or courses in a place and manner accessible to
> persons with disabilities . . . .

42 U.S.C. § 12189. [See also]{.underline} 28 C.F.R. § 36.309(a).

Recognizing the significance of access to educational opportunities and
professional development, Congress enacted a separate section of the ADA
covering entities that are educators or examiners; this section covers
all such entities, whether or not they are also subject to other
provisions of title II or title III. 42 U.S.C. § 12189. [See
also]{.underline} 28 C.F.R. pt. 36, App. B at 602 (1992) (reiterating
congressional intent that \"persons with disabilities are not foreclosed
from educational, professional, or trade opportunities because an
examination or course is conducted in an inaccessible site or without
needed modifications\"). The Department\'s analysis noted \"the
importance of ensuring that key gateways to education and employment are
open to individuals with disabilities.\" [Id.]{.underline}

The regulation specifically requires that covered courses provide
appropriate auxiliary aids and services:

> A private entity that offers a course covered by this section [shall
> provide appropriate auxiliary aids and services for persons with
> impaired sensory, manual, or speaking skills]{.underline}, unless the
> private entity can demonstrate that offering a particular auxiliary
> aid or service would fundamentally alter the course or would result in
> an undue burden. . . .

28 C.F.R. § 36.309(c)(3).

The Becker company\'s discriminatory practices, policies, and conduct
towards Mr. Jex, that were fully set forth above, also violate section
309 and its implementing regulation. The substance of the violation is
identical to the Defendant\'s violation of section 302. Its effects and
social import are especially damaging in the context of professional
education.

**V. PATTERN OR PRACTICE OF DISCRIMINATION**

Suit by the United States under title III is authorized where there is a
\"pattern or practice of discrimination\" or where discrimination
against people with disabilities \"raises an issue of general public
importance.\"[^25] 42 U.S.C. §§ 12188(b)(1)(a)(i) and (ii). [See
also]{.underline} 28 C.F.R § 36.503. A \"pattern or practice\" of
discrimination depends on a showing of more than \"the mere occurrence
of isolated or \'accidental\' or sporadic discriminatory acts.\"
[International Brotherhood of Teamsters v. United States]{.underline},
431 U.S. 324, 336 (1977), [cited in]{.underline}, [Cooper v. Federal
Reserve Bank of Richmond]{.underline}, 467 U.S. 867, 876 (1984). A
\"pattern or practice\" of discrimination is established by showing that
discrimination is a company\'s \"regular rather than the unusual
practice.\" [Id.]{.underline}

The Becker company has engaged in a pattern and practice of
discrimination by repeatedly denying students\' requests for appropriate
auxiliary aids and services including sign language interpreters,
pursuant to both written and unwritten policy. Even without the
testimony of other witnesses, this pattern or practice of discrimination
is evident from the company\'s repeated refusals in 1992 to provide Mr.
Jex with a sign language interpreter.

**VI. REQUESTED RELIEF**

The United States has established that it is entitled to the following
relief, as authorized by section 308, 42 U.S.C. § 12188.

**A. Declaratory relief.**

The Court should declare that the discriminatory policies and practices
of the Becker company violate title III of the ADA, 42 U.S.C. §
12181-89, and its implementing regulation, 28 C.F.R. pt. 36 (1992). The
Court is authorized by statute to grant \"any equitable relief\" that it
considers appropriate. 42 U.S.C.

§ 12188(b)(2)(A); [see]{.underline} 28 C.F.R. § 36.504(a)(1).

It is appropriate for this Court to declare that the Becker company\'s
policy and practices violate the ADA. The public interest in resolving
uncertainties of the obligations of public accommodations under the ADA
is substantial. [See]{.underline} [Bituminous Coal Operators\' Assn.,
Inc. v. International Union, United Mine Wrkrs.]{.underline}, 585 F.2d
586, 596-97 (3d Cir. 1978). Because of the Becker company\'s unique
status as an industry leader in the crucial area of test preparatory
courses, other companies will look to the outcome of this case when
assessing how to meet their legal obligations under the ADA.

**B. Injunctive relief.**

The Court should enjoin the Becker company from discriminating against
people with hearing impairments. Specifically, the company should be
required to provide sign language interpreters on request, if the
student requesting the interpreter shows (1) that he or she has used
sign language interpreters in other educational or business settings or
(2) that, although he or she has not used interpreters in other classes
or business settings, an interpreter is required for effective
communication in the Becker course. The latter showing would be
appropriate, for example, if a student learned sign language after the
last classes he or she took, or if the student can show that he or she
did not receive effective communication in an educational or business
setting due to lack of an interpreter. The same policy should be
followed as to requests for other auxiliary aids.

Despite the Becker company\'s possible protests that it has
substantially modified its policies, the government\'s need for
appropriate injunctive relief is not moot. Mootness does not result when
a defendant voluntarily agrees to refrain from a practice, but is free
to resume it at any time. [Los Angeles County v. Davis]{.underline}, 440
U.S. 625, 631 (1979) (citations omitted). Even if Defendant\'s alleged
policy modifications during litigation were legally adequate, which they
were not, these modifications would not render the case moot. [United
States v. W.T. Grant Co.]{.underline}, 345 U.S. 629, 633 (1953). If the
Becker company has indeed modified its policies, the modifications are
merely temporary without any concomitant commitment to modify its
policies on a permanent basis. Therefore, injunctive relief is
appropriate.

**C. Damages.**

The United States asks the Court to order that Mr. Jex is entitled to
monetary damages in an amount to be determined at future proceedings.
Section 308(b)(2)(B) specifically authorizes the court to award
\"monetary damages to persons aggrieved\" when requested by the Attorney
General. 42 U.S.C. § 12188. [See also]{.underline} 28 C.F.R. §
36.504(a)(2). Monetary damages include compensatory and incidental
damages, as well as damages resulting from pain and suffering.
[See]{.underline} 28 C.F.R. pt. 36, App. B at 626 (1992).

The United States has proven that the Becker company discriminated
against Mr. Jex. This discrimination caused Mr. Jex hardship for which
he is entitled to compensation. Mr. Jex suffered economic loss,
frustration and humiliation, and pain and suffering. At a later
proceeding, the government will provide evidence regarding the amount of
these compensatory damages, damages resulting from pain and suffering,
and incidental damages.

**D. Civil penalties.**

Finally, the Court should order the Becker company to pay civil
penalties to vindicate the public interest as authorized by 42 U.S.C. §
12188(b)(2)(C). Once the Court determines that civil penalties are
appropriate, it may determine the appropriate amount of the penalties at
a later proceeding.

A defendant\'s good faith effort to comply with the ADA is a factor to
consider when evaluating the amount of civil penalties to impose. 42
U.S.C. § 12188(b)(2)(C)(5). [See also]{.underline} 28 C.F.R. §
36.504(a)(3). The statute specifically provides that in assessing good
faith, the court shall consider \"whether the entity could reasonably
have anticipated the need for an appropriate type of auxiliary aids
needed to accommodate the unique needs of a particular individual with a
disability.\" [Id.]{.underline} Here the defendant has failed not only
to anticipate such needs, it has refused to consider the student\'s
statements of their needs. In the instant case, the Becker company was
repeatedly informed by Mr. Jex and others of their need for sign
language interpreters. The Becker company had actual and repeated notice
of the unique needs of particular students with hearing impairments who
wanted to participate fully in its program. Congress anticipated just
such a situation in addressing the assessment of civil penalties.
[See]{.underline} H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 at 128
(1990) (\"Of course, once an individual has identified and requested a
specific auxiliary aid, the public accommodation cannot subsequently
claim that the aid could not have been reasonably anticipated.\") Civil
penalties are necessary in this case to vindicate the public interest.

Congress intended that the amount of civil penalties assessed against a
covered entity be partially determined by the financial status of the
offending entity. [See]{.underline} H.R. Rep. No. 485, 101st Cong., 2d
Sess., pt. 3 at 68 (1990) (listing \"the financial circumstances of the
violator\" among the factors to consider in setting the amount of the
penalties). Therefore, once the Court has declared that civil penalties
are appropriate, the Court should re-open discovery for this limited
purpose as contemplated by Magistrate Judge Kay\'s Order of August 23,
1993, directing Defendant to respond to Interrogatories Nos. 10, 11, and
12 of the United States\' First Set of Interrogatories, and allowing the
United States to depose Mr. Becker regarding the financial circumstances
of the Becker company and its corporate general partner.[^26]

**VII. CONCLUSION**

This Court should grant partial summary judgment in favor of the United
States, declare that the Becker company has violated title III of the
ADA, and enjoin the Becker company from refusing to provide appropriate
auxiliary aids. The Court should set firm hearing and trial dates so the
parties may expeditiously resolve all remaining matters, including
monetary damages for aggrieved individuals such as Rod Jex, civil
penalties, and other relief that may be appropriate.

Respectfully submitted,

JOHN L. WODATCH

Chief, Public Access Section

D.C. Bar No. 344523

L. IRENE BOWEN

Deputy Chief, Public Access Section

D.C. Bar No. 925610

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

V. COLLEEN MILLER

MARC DUBIN

MARY LOU MOBLEY

Attorneys[^27]

Public Access Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

[CERTIFICATE OF SERVICE]{.underline}

I, the undersigned attorney for the United States of America, do hereby
certify that as of October 12, 1993, I will have personally caused to be
served upon the person listed below, by hand delivery, a true and
correct copy of the foregoing Corrected Memorandum of Points and
Authorities In Support of United States\' Motion for Partial Summary
Judgment:

BURTON FISHMAN

Weinberg & Green

100 South Charles Street

Baltimore, Maryland 21201-2773

(Attorney for the Defendant)

SO CERTIFIED this 11th day of October, 1993.

MARY LOU MOBLEY

Trial Attorney

U.S. Department of Justice

Civil Rights Division

Public Access Section

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 307-0663

[^1]: ^?^ The Court should hold further hearings regarding the amount of
    civil penalties, relief for all aggrieved persons, and other relief
    that may be appropriate.

[^2]: ^?^ All facts referred to in this memorandum are set forth at
    length in the accompanying Rule 108(h) Statement of Undisputed
    Material Facts (\"Facts\"). These facts are found in the
    Defendant\'s Answer to Complaint (\"Answer\"), depositions
    (\"Depo.\"), Defendant\'s Answers to Interrogatories
    (\"Interrogatory\"), witness declarations (\"Dec.\"), and other
    documents as noted.

[^3]: ^?^ The \'J-notes\' include a transcript of the taped lecture, a
    number of suggested verbal comments for instructors to make, and
    copies of handouts. Also included are instructions on time limits
    for breaks and indications of when instructors are to put a
    particular transparency on the screen. Facts ¶ 17 (Interrogatory).

[^4]: ^?^ \"Individuals with hearing impairments\" is the statutory
    term, 42 U.S.C. § 12102(1)(A), used in this memorandum to include
    people who are deaf ([i.e.]{.underline}, have profound hearing
    loss), as well as those who have a lesser degree of hearing loss
    (sometimes referred to as \"hard of hearing\").

[^5]: ^?^ While the written policy does not expressly preclude sign
    language interpreters, it makes available only three alternatives:

    > 1\. A student who is hard of hearing can sit next to the
    > instructor and use an extra set of earphones to the recorder.
    >
    > 2\. A student who is deaf should sit next to the instructor and be
    > given the instructor preview set of J-notes. The instructor is
    > directed to monitor the student and point out in the J-notes what
    > is being said on the tape.
    >
    > 3\. The instructor should take note of any significant additional
    > material being discussed that is not in the J-Notes and discuss it
    > with the student at a break\[.\]

    Facts ¶ 41.

[^6]: ^?^ NCLD is now the \"National Center for Law and Deafness.\"

[^7]: ^?^ In the first class, instructor Jim Baisey stopped the tape and
    added his own words or \'J-note\' interjects at least 43 times, and
    there were 2 questions from students. Mr. Baisey also spoke to the
    class for 30 minutes at the end of the tape. Mr. Jex had no way of
    knowing what he said; he presumed that Mr. Baisey spent the time
    summarizing the tape and discussing the homework. Mr. Jex also
    recorded that the instructor occasionally advanced the tape,
    skipping portions of it and leaving Mr. Jex to try to find his place
    in the transcript. On at least one such occasion, the instructor
    stopped the tape and Mr. Jex believes he was able to lip-read him
    saying, \"The tape is wrong . . . \" Mr. Jex was not able to
    understand the instructor\'s interpretation of the correct
    information.

[^8]: ^?^ In this class, there were 68 instructor deviations and 16
    class questions. Facts ¶ 66.

[^9]: ^?^ At no time did anyone from the Becker company inquire as to
    whether the \'J-notes\' adequately communicated the course contents
    to Mr. Jex. Even when he brought his own interpreter, neither the
    instructors nor any other Becker company personnel questioned him
    about his reasons for needing an interpreter. Facts ¶ 67.

[^10]: ^?^ Pursuant to Magistrate Judge Kay\'s Order of October 1, 1993,
    Defendant provided the government with contact information for some
    students who had attended the Becker course. The United States has
    diligently attempted to interview the students whose identifying
    information has just been provided.

    Ms. Palm is one of these students. Due to the extremely short
    deadline, Ms. Palm has been unable to sign her declaration in time
    for it to be filed by September 8, 1993. The United States will
    supplement the record with her sworn declaration as soon as
    possible. The facts on which this paragraph is based have been
    reviewed by Ms. Palm and are true to the best of counsel\'s
    knowledge.

[^11]: ^?^ Like Ms. Palm, Mr. Kelly is one of the students whose
    identifying information was given to the government in the same week
    that this memorandum had to be filed. The United States will
    supplement the record with his sworn declaration as soon as
    possible. He has reviewed this paragraph and it is accurate to the
    best of counsel\'s knowledge.

[^12]: ^?^ The ADA defines a \"disability\" as \"a physical or mental
    impairment that substantially limits one or more . . . major life
    activit\[y\] . . . \" 42 U.S.C. § 12102(2)(A). \"Major life
    activities\" includes hearing. 28 C.F.R. § 36.104.

[^13]: ^?^ Where, as here, Congress expressly delegates authority to an
    agency to issue legislative regulations, 42 U.S.C. § 12134(a), the
    regulations \"are given controlling weight unless they are
    arbitrary, capricious, or manifestly contrary to the statute.\"
    [Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
    Inc.]{.underline}, 467 U.S. 837, 844 (1984).

    Agencies are afforded substantial deference in interpreting their
    own regulations. The Supreme Court has announced, as recently as May
    3, 1993, that \"provided that an agency\'s interpretation of its own
    regulations does not violate the Constitution or a federal statute,
    it must be given \'controlling weight unless it is plainly erroneous
    or inconsistent with the regulation.\'\" [Stinson v. United
    States]{.underline}, 113 S. Ct. 1913, 1919 (1993) (quoting [Bowles
    v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410, 414 (1945)).

[^14]: ^?^ As the specific violations set forth herein demonstrate,
    Defendant\'s policies and practices have prevented \"full and equal
    enjoyment\" of its service by people with hearing impairments in
    violation of the general rule of section 302(a), 42 U.S.C. §
    12182(a). [See also]{.underline} 28 C.F.R. § 36.201(a). Section
    302(a) is not addressed in detail here, because a violation of any
    other provision of section 302 equates to a violation of the general
    rule.

[^15]: ^?^ Public accommodations are obligated to provide auxiliary aids
    and services except where they can demonstrate that to do so would
    pose an \"undue burden,\" or would \"fundamentally alter\" the
    nature of the program. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. §
    36.303(c). The Becker company has admitted that it would not be an
    undue burden to provide Mr. Jex, or any other student, appropriate
    auxiliary aids and services including sign language interpreters.
    The defense of fundamental alteration is likewise unavailable to the
    company and has never been raised.

[^16]: ^?^ The ADA was substantially based on section 504 of the
    Rehabilitation Act of 1973, 29 U.S.C. § 794 (as amended by Pub.L.
    95-602, Title I, §§ 119, 112(d)(2), Nov. 6, 1978, 92 Stat. 2982,
    2987). Congress drew title III\'s \"auxiliary aids and services\"
    language from section 504 regulations prohibiting discrimination
    against persons with disabilities in federally-conducted programs.
    [See]{.underline} 28 C.F.R. § 39.160(a) (Dept. of Justice).

    The \"effective communication\" language of section 36.303(c)
    derives directly from these same regulations. 28 C.F.R. pt. 36, App.
    B (Dept. of Justice\'s Analysis of the regulation, originally
    published as the preamble to the rule, 56 Fed. Reg. 35544, 35691
    (1991), hereinafter \"Analysis\") at 593 (1992). In crafting section
    36.303(c), the Department drew on section 504\'s regulations and
    case law in order to \"give emphasis to the underlying obligation\"
    that a public accommodation provide communication to its customers
    with disabilities that is [as effective]{.underline} as the
    communication it provides to others.

[^17]: ^?^ The regulation expands on the statute\'s examples of aids, 28
    C.F.R. § 36.303(b)(1), but it does not provide an exhaustive list
    because the universe is large and continually expanding with new
    technology. 28 C.F.R. pt. 36, App. B at 593 (1992).
    [Cf]{.underline}. [Galloway v. Superior Ct. of the District of
    Columbia]{.underline}, 816 F. Supp. 12, 18 n.11 (D.D.C. 1993) (the
    Court notes that the possible auxiliary aids to accommodate a blind
    juror are \"as limitless as a willing imagination can conceive\").

[^18]: ^?^ In its analysis of section 302(b)(2)(A)(iii), the Committee
    on Labor and Human Resources stated that it \"expects that the
    covered entity will consult with the individual with a disability
    before providing a particular auxiliary aid or service.\" S. Rep.
    No. 116, 101st Cong., 1st Sess. at 63 (1990). [See also]{.underline}
    H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 at 107 (1990)
    (same). Consistent with congressional intent, the Department of
    Justice \"strongly encourages\" public accommodations to consult
    with their disabled customers when determining the appropriate means
    of communication. 28 C.F.R. pt. 36, App. B at 594 (1992).

[^19]: ^?^ [See]{.underline}, [supra]{.underline}, n.16.
    [See]{.underline} 42 U.S.C. § 12201(a) (nothing in the ADA shall be
    construed to apply a lesser standard than the standards applied
    under section 504 and its regulations).

[^20]: ^?^ The Becker company\'s failure to rely on or even consider the
    representations of students with hearing impairments marks a radical
    departure from its attitudes towards students in any other
    situation. The Becker company\'s general philosophy toward its
    students is one of accommodating the student and resolving any
    conflict in the favor of the student. If a student claims to have
    missed a class, a student may repeat it without proving his or her
    absence. If a student claims to have returned a book to the company,
    the company will acknowledge the return and will refund the book
    deposit even if it has no record reflecting that the student
    returned the book. Facts ¶ 43.

[^21]: ^?^ Neither has Defendant consulted with professionals who are
    familiar with the needs of persons with hearing impairments, in
    order to know which types of technologies are appropriate in the
    context of the Becker course. This is especially true in the area of
    assistive listening devices. Defendant has never consulted with
    anyone with even remote experience or expertise to provide devices
    that will enable persons who are hard of hearing to be able to
    benefit effectively from amplified sound.

[^22]: ^?^ [See]{.underline} discussion, [supra]{.underline}, at 11-13.

[^23]: ^?^ [See]{.underline} facts set out in section III. B.,
    [supra.]{.underline}

[^24]: ^?^ The company\'s continued failure to examine the particular
    needs of its students is evident in its treatment of Ms. Mundell and
    Ms. Rohlin, both of whom informed the Becker company that they would
    lipread the course. Defendant failed to consider the fact that
    neither could possibly lipread the tape-recorded portions of its
    course.

[^25]: ^?^ Courts generally refuse to review the Attorney General\'s
    determination of general public importance. [United States v.
    Northside Realty Assocs., Inc.]{.underline}, 474 F.2d 1164, 1168
    (5th Cir. 1973), [cert. denied]{.underline}, 424 U.S. 977 (1976);
    [United States v. University Oaks Civic Club]{.underline}, 653 F.
    Supp. 1469, 1474 (S.D. Tex. 1987) (citations omitted).

[^26]: ^?^ Although in that Order, Judge Kay summarily denied the United
    States\' Motion to Compel Financial Information, the fact that the
    denial was without prejudice implies that Judge Kay adopted
    Defendant\'s argument that the United States\' right to the
    financial information sought in Interrogatories 10, 11, and 12 of
    the United States\' First Set of Interrogatories should be postponed
    until after the Court made a determination regarding the
    appropriateness of civil penalties. Facts ¶ \_\_\_ (Becker Depo.).
    Likewise, at Mr. Becker\'s deposition, defense counsel cited
    Magistrate Judge Kay\'s Order and repeatedly instructed the witness
    not to answer any questions regarding the financial status of the
    company or its corporate general partner. Facts ¶ \_\_\_ (Becker
    Depo.).

[^27]: ^?^ Kate Nicholson, a member of the Public Access Section who has
    not yet been admitted to the bar, made significant contributions to
    this memorandum.