IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

)

THE UNITED STATES OF AMERICA, )

)

Plaintiff )

) CV-92-2879 (TFH/AK)

v\. )

)

BECKER, CPA REVIEW, LTD., )

)

Defendant )

)

)

REPLY TO DEFENDANT\'S OPPOSITION TO

UNITED STATES\' MOTION FOR PARTIAL SUMMARY JUDGMENT

JAMES P. TURNER

Acting Assistant Attorney

General for Civil Rights

JOHN L. WODATCH

L. IRENE BOWEN

MARC DUBIN

MARY LOU MOBLEY

Attorneys

KATE NICHOLSON

U.S. Department of Justice

Civil Rights Division

Public Access Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

Table of Contents

Introduction 1

Analysis 2

> I. Defendant\'s policy and practices prevented persons\
> with hearing impairments from receiving\
> opportunities for the full and equal enjoyment of\
> the Becker course 2
>
> A. The ADA requires the Becker Company to\
> provide appropriate auxiliary aids and\
> services in order to ensure equal\
> opportunities for participation and for\
> receipt of equal services and advantages 3
>
> 1\. Section 302 applies an opportunity-\
> oriented test rather than a results-\
> oriented test 4
>
> 2\. Section 302 focuses on the comparative quality of the delivery of
> a good or\
> service, not on \"apprehension.\" 6
>
> 3\. The title III standard derives from\
> section 504 of the Rehabilitation Act of 1973 and is the same standard
> as applied under title II 8
>
> a\. Section 504 of the Rehabilitation\
> Act 9
>
> b\. Title II of the ADA 12
>
> B. The Becker company has failed to meet the ADA standard and has
> effectively denied access to large components of its course for some\
> people with disabilities 15
>
> II\. The Becker company discriminated against Rod Jex 18
>
> III\. The Court should grant the United States\' request\
> for equitable relief 24
>
> IV\. The Court should award damages to Mr. Jex and\
> civil penalties to the United States 25

Conclusion 28

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

)

THE UNITED STATES OF AMERICA, )

) CV-92-2879 (TFH/AK)

Plaintiff )

) Reply to Defendant\'s

v\. ) Opposition to United

) States\' Motion for Partial

BECKER, CPA REVIEW, LTD., ) Summary Judgment

)

Defendant )

)

)

**[Introduction]{.underline}**

The United States submits this Reply to Defendant\'s Opposition to the
United States\' Motion for Partial Summary Judgment. The United States
and the Becker company generally agree on the facts and law as set out
in the papers supporting the government\'s motion for partial summary
judgment.[^1] Disputes exist only with respect to the application of the
law[^2] to the facts.[^3] This case is, therefore, ripe for summary
judgment. [See]{.underline} [Celotex Corp. v. Catrett]{.underline}, 477
U.S. 377, 323-24 (1986); [Anderson v. Liberty Lobby, Inc.]{.underline},
477 U.S. 242, 250 (1986); [Matsushita Elec. Indus. Co. v. Zenith Radio
Corp.]{.underline}, 475 U.S. 574, 586-87 (1986); [Adickes v. S.H. Kress
& Co.]{.underline}, 398 U.S. 144 (1970).

**[Analysis]{.underline}**

I.  **[Defendant\'s policy and practices prevented persons with hearing
    impairments from receiving opportunities for the full and equal
    enjoyment of the Becker course.]{.underline}**

Section 302(a) of title III requires public accommodations to ensure
that persons with disabilities have the [full and equal
enjoyment]{.underline} of the entities\' goods, services, and
advantages.[^4] 42 U.S.C. § 12182(a) (1990). \"Full and equal enjoyment
means the right to participate and to have an equal opportunity to
obtain the same results as others.\" H.R. Rep. No. 485, 101st Cong., 2d
Sess., pt. 3 at 55 (1990) (Judiciary Committee). Specific statutory and
regulatory provisions applying this standard require covered entities:

> \(1\) to provide auxiliary aids and services to ensure effective
> communication (42 U.S.C. § 12182(b)(2)(A)(iii) and 28 C.F.R. §
> 36.303[^5]);
>
> \(2\) to provide equal opportunities to participate in or benefit from
> the entity\'s goods, services, and advantages to persons with
> disabilities (42 U.S.C. §§ 12182(b)(1)(A)(i) and (ii), and 28 C.F.R.
> §§ 36.202(a) and (b)); and
>
> \(3\) to make reasonable policy modifications (42 U.S.C. §
> 12182(b)(2)(A)(ii) and 28 C.F.R. §36.302).[^6]

Congress intended that each of these standards be applied in a manner
consistent with section 302(a)\'s mandate of \"full and equal
enjoyment.\" H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 at 104
(1990) (Committee on Education and Labor). Entities like the Becker
company must provide goods and services in a manner that achieves a
qualitatively [equal level]{.underline} of opportunities to obtain
goods, services, and advantages across the [full range]{.underline} that
is offered to others.

A.  **[The ADA requires the Becker company to provide appropriate
    auxiliary aids and services in order to ensure equal opportunities
    for participation and for receipt of equal services and
    advantages]{.underline}**.

In two ways, the Becker company misdefines the appropriate measure of
whether a particular auxiliary aid or service provides effective
communication. First, it relies on a results-oriented test to determine
an auxiliary aid\'s effectiveness. Defendant\'s Opposition to United
States\' Motion for Partial Summary Judgment (\"Defendant\'s
Opposition\") at 19-20. Second, it concentrates on determining what
level of \"apprehension\" is required for effective communication.
[See]{.underline}, [e.g.]{.underline}, Defendant\'s Memorandum of Points
and Authorities in Support of Motion for Summary Judgment
(\"Defendant\'s Memorandum\") at 14; Defendant\'s Opposition at 19-20.
Both approaches are misguided.

1.  [Section 302 applies an opportunity-oriented test rather than a
    results-oriented test.]{.underline}

The Becker company misdefines the appropriate measure of effective
communication by employing a results-oriented test. [See]{.underline},
[e.g.]{.underline}, Defendant\'s Opposition at 19-20. As a consequence,
the Becker company draws too closely the connection between its
\'J-note\' method and former students\' examination results. Although
there is undoubtedly some connection between the effectiveness of a
particular auxiliary aid or service and success on the exam, no perfect
causal connection exists. Intelligence, diligence in studying, class
attendance, physical health, sleeping habits, nervousness, test-taking
skills, and other factors may contribute to a candidate\'s exam success
or failure. Moreover, a candidate\'s exam failure may be caused by a
lack of confidence and motivation resulting from the Becker company\'s
discrimination. [See]{.underline} Exhibit 46 (Kaplan Dep. at 472-73) (Q:
\"Do you have an opinion as to whether a deaf student not hearing other
students\' questions would have any effect on his or her motivation?\"
A: \"Oh, yes, definitely. Definitely.\").

Congress rejected the use of results-oriented tests for determining
whether a particular auxiliary aid or service has provided effective
communication: \"\'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]{.underline} to obtain the same result.\" S.Rep. No. 116,
101st Cong., 1st Sess. at 60 (1990) (emphasis added) (Committee on Labor
and Human Resources); [see also]{.underline} H.R. Rep. No. 485, 101st
Cong., 2nd Sess., pt. 2 at 101 (Committee on Education and Labor); H.R.
Rep. No. 485, 101st Cong. 2nd Sess., pt. 3 at 55 (1990) (Judiciary
Committee).

The Becker company\'s focus on exam success as a measurement of the
effectiveness of the \'J-note\' method relies, in part, on its claimed
past success in accommodating students with hearing impairments through
the \'J-note\' method. [See]{.underline}, [e.g.]{.underline},
Defendant\'s Memorandum at 17, 18; Defendant\'s Opposition at 16, 17,
20. Even if this claim had overwhelming factual merit, which it does\
not,[^7] it ignores a fundamental precept of title III: the
effectiveness of accommodations must be measured against the individual
needs of each person with a disability. Even if some former Becker
students who had requested interpreters had been accommodated by the
\'J-note\' method, there is no guarantee that this method will provide
effective communication to all present and future students with hearing
impairments. Indeed, the Becker company concedes this point: \"Becker
recognizes that the J-Notes accommodation may not work for everyone.\"
Defendant\'s Opposition at 17. From this concession must follow the
conclusion that a results-oriented test based wholly on former
students\' exam success cannot be an appropriate measure of whether the
\'J-note\' method will provide effective communication to a particular
individual.[^8]

2.  [Section 302 focuses on the comparative quality of the delivery of a
    good or service, not on \"apprehension.\"]{.underline}[^9]

The Becker company determines whether a student with a hearing
impairment has received \"effective communication\" by whether that
student \"apprehends\" enough information \-- by using the \'J-notes\'
\-- to pass the CPA examination. Defendant\'s Opposition at 19. This
approach fails to account for other benefits available to hearing
students. Hearing students\' motivation to study and learn is increased
through instructors\' expressed interest in their success.
[See]{.underline} Facts ¶¶ 37, 38. Hearing students remember the
information long after first \"apprehending\" it because their
comprehension is reinforced through a variety of formats. Facts ¶ 38.
Hearing students benefit from instructors\' responses to questions; they
benefit even when an instructor merely responds that a question is
off-target, because this response clarifies for the entire hearing
audience what their attention should be focused upon. [See]{.underline}
[id.]{.underline} Students with hearing impairments do not receive any
of this crucial interaction when they are relegated to reading the
instructors\' manual. It is simply not enough that the \'J-notes\'
contain many of the accounting concepts tested by the CPA examination.

Section 302(a) of the ADA mandates that persons with disabilities
receive the \"full and equal enjoyment\" of public accommodations\'
goods and services. 42 U.S.C. § 12182(a). The auxiliary aids provision
of section 302(b), in describing actions that violate section 302(a),
specifically defines discrimination as the failure to ensure that no
individual with a disability is treated differently or denied services.
42 U.S.C. § 12182(b)(2)(A)(iii). [Accord]{.underline}, 28 C.F.R. §
36.303(a); [see also]{.underline} Department of Justice\'s preamble to
the title III regulation, 28 C.F.R. pt. 36, App. B at 594 (1992)
(hereinafter \"Analysis\").

Whether the Becker company communicated effectively with persons with
disabilities, then, should be judged partly by whether a lack of
appropriate auxiliary aids or services had the effect of denying to them
opportunities for the full and equal enjoyment of the Becker course.

Instead of attempting to determine a minimally-acceptable level of
\"apprehension,\" or of focusing on a results-oriented test, this Court
should apply a qualitative measurement that meets the \"full and equal
enjoyment\" standard of section 302(a). Section 302(b)(2)(A)(iii)\'s
definition of discrimination as the denial of services or as different
treatment due to the \"absence of auxiliary aids and services\" must be
read as mandating that the appropriate auxiliary aid or service be
provided. The controlling inquiry is whether, in light of a particular
individual\'s disability and communication needs, the \'J-note\' method
provides that person with opportunities for full enjoyment of the Becker
course that are equal to opportunities enjoyed by their peers.

3.  [The title III standard derives from section 504 of the
    Rehabilitation Act of 1973 and is the same standard as applied under
    title II]{.underline}.

Defendant wrongly argues that the \"full and equal enjoyment\" standard
of title III, as applied to the auxiliary aids and services requirement,
imposes a lesser standard than those applicable under section 504 of the
Rehabilitation Act of 1973 and title II of the ADA. [See]{.underline}
Defendant\'s Opposition at 6-14.

a.  **Section 504 of the Rehabilitation Act.**

The Becker company contends that this Court should not heed the case law
developed under section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794 (1973), [amended by]{.underline} Pub.L. 95-602, Title I, §§ 119,
122(d)(2), Nov. 6, 1978, 92 Stat. 2982, 2987, that establishes that sign
language interpreters may be appropriate and necessary in educational
settings. [See]{.underline}, [e.g.]{.underline}, Defendant\'s Opposition
at 11-12. The Becker company\'s argument is flawed because it ignores
the substantial historic link between title III and section 504.

Congress and the Department drew title III\'s qualitative standard of
\"full and equal enjoyment\" directly from the regulations and case law
giving force to section 504. Section 504 protects the civil rights of
persons with disabilities in federally assisted and federally conducted
programs. 29 U.S.C. § 794 (as amended).

Section 501(a) of the ADA states in relevant part: \"Except as otherwise
provided in this Act, nothing in this Act shall be construed to apply a
lesser standard than the standards applied under title V of the
Rehabilitation Act of 1973 (29 U.S.C. § 790 et seq.) or the regulations
issued by Federal agencies pursuant to such title.\"[^10] 42 U.S.C. §
12201(a). [See also]{.underline} [Rothschild v.
Grottenthaler]{.underline}, 907 F.2d 286, 291 (2d Cir. 1990)
(\"regulations, promulgated pursuant to 29 U.S.C. § 794(a), are \'an
important source of guidance on the meaning of § 504.\'\" (citations
omitted)). Title III\'s \"full and equal enjoyment\" standard, as well
as the specific statutory and regulatory provisions defining its scope,
incorporates standards developed under section 504 of the Rehabilitation
Act; contrary to Defendant\'s suggestion, nothing in the statute
provides otherwise.[^11]

Congress derived the \"auxiliary aids and services\" requirement of
section 302(b)(2)(A)(iii), the \"equal opportunity to participate\"
provision of section 302(b)(1)(A)(i), and the prohibition of \"unequal
benefits\" in section 302(b)(1)(A)(ii) directly from section 504
regulations.[^12] [See]{.underline}, [e.g.]{.underline}, Department
of Justice regulations for federally-conducted programs, 28

C.F.R. § 39.160(a)(1) (1992) (\"The agency shall furnish appropriate
auxiliary aids where necessary to afford a handicapped person an equal
opportunity to participate in, and enjoy the benefits of, a program or
activity conducted by the agency\"), and for federally-assisted
programs, 28 C.F.R. §§ 42.503(b)(1)(ii) and (iv) (1992) (ensuring the
\"equal opportunity to achieve the same benefits that others achieve\"
as well as the \"equal opportunity to participate\"), and 28 C.F.R. §
42.503(e) (\"Recipients \[of federal funds\] shall insure that
communications with their . . . beneficiaries are effectively conveyed
to those having impaired vision and hearing\"). [See also]{.underline}
45 C.F.R. § 84.44(d)(1) (1981) (Department of Health and Human Services
section 504 regulation for postsecondary education) (\"A recipient to
which this subpart applies shall take such steps as are necessary to
ensure that no handicapped student is denied the benefits of, excluded
from participation in, or otherwise subjected to discrimination under
the education program or activity operated by the recipient because of
the absence of educational auxiliary aids for students with impaired
sensory, manual, or speaking skills.\").

The Department has explicitly recognized that the \"effective
communication\" language of section 36.303(c) derives from these and
similar regulations, [see]{.underline}, [e.g.]{.underline}, 28 C.F.R. §
39.160(a) (Department of Justice section 504 regulation for federally
conducted activities) (\"The agency shall take appropriate steps to
ensure effective communication with applicants, participants, personnel
of other Federal entities, and members of the public\"); Analysis at
593; and has expressly incorporated case law under section 504 in its
analysis of the regulation. Analysis at 595; [see also]{.underline} U.S.
Corrected Memorandum at n.16.

The Becker company argues that the United States extends the provisions
of the Rehabilitation Act beyond their scope. Defendant\'s Opposition at
11. This position is without merit in light of the uniform statutory and
regulatory language, congressional history, and administrative analysis
linking these provisions. Thus, the Court may properly follow the long
line of cases interpreting section 504 to require the provision of sign
language interpreters in educational settings. [See]{.underline},
[e.g.]{.underline}, cases cited in U.S. Opposition at 34, n.12. These
cases establish that sign language interpreters are appropriate and
necessary in educational settings. The Court should reject Defendant\'s
argument that section 504 case law is inapposite to the issues before
the Court.

b.  **Title II of the ADA.**

The Court should likewise reject the Becker company\'s misleading
argument that the United States is attempting to impose upon it the
\"primary consideration\" standard of title II, 42 U.S.C. §§ 12131-65
(1990). [See]{.underline} Defendant\'s Opposition at 6-10. Titles II and
III of the ADA require entities to provide effective communication; any
distinction between the regulations issued under the titles lies not in
this shared mandate, but in the procedures for achieving that end. Title
II entities must give primary consideration to the expressed choices of
persons with disabilities, or select other auxiliary aids and services
that are equally appropriate. 28 C.F.R. § 35.160(b)(2). Consistent with
congressional intent,[^13] title III entities are strongly encouraged to
consult with persons with disabilities when selecting the appropriate
auxiliary aids and services. Analysis at 594. Under both titles, covered
entities have the ultimate responsibility for choosing auxiliary aids
and services that will provide effective communication. Both types of
entities are liable if they make the wrong choice.

In listing the obligations under the title II standard of effective
communication, the Becker company misconstrues language used by the
Department in its Title II Technical Assistance Manual. In its
explanation of \"primary consideration,\" the Department explained, \"It
is important to consult with the individual to determine the most
appropriate auxiliary aid or service, because the individual with a
disability is most familiar with his or her disability and is in the
best position to determine what type of aid or service will be
effective.\" Title II Technical Assistance Manual at 36 (Exhibit 47).

Defendant contends that this language requires that governmental
entities \"[must]{.underline} provide the [most appropriate]{.underline}
auxiliary aid or service\" as determined by the individual with a
disability, as opposed to the title III standard of providing whatever
auxiliary aid or service will lead to effective communication.
Defendant\'s Opposition at 8, 9 (emphasis in the original). This
mischaracterization of the language in the Title II Technical Assistance
Manual is not supported by the ADA, the title II regulation, or the
Department\'s Analysis. When the \"most appropriate auxiliary aid\"
language is considered in the context in which it appears, the standard
illuminated is one of objective, not subjective, appropriateness. The
Department did not intend in its Title II Technical Assistance Manual to
imply, and indeed did not imply, that title II requires a qualitatively
better auxiliary aid or service than is required under title III.
Indeed, such a statement would contravene the \"effective
communication\" standard established in the regulations.

Instead, under both titles the covered entities should strive to find
the most appropriate auxiliary aid or service that will furnish
effective communication given all the relevant factors: communication
length and complexity, subject matter, setting, and the individual\'s
particular communication skills and requirements. The Title II Technical
Assistance Manual explicitly states that a covered entity does not have
to honor the expressed choice of an individual with a disability if \"it
can demonstrate that another equally effective means of communication is
available . . . . \" Title II Technical Assistance Manual at 36 (Exhibit
47); [accord]{.underline}, Title II Analysis at 451 (\"The public entity
shall honor the choice unless it can demonstrate that another effective
means of communication exists . . . . \"). This statement clarifies that
governmental entities, like the public accommodations covered by title
III, do not have to rely exclusively on the determination of
appropriateness made by a person with a disability. Instead, they may
take into account a wide range of factors that go well beyond any
individual person\'s determination that a particular auxiliary aid or
service would be \"most appropriate\" for him or her.

In the title III Analysis, the Department explains that although public
accommodations generally have flexibility in choosing appropriate
auxiliary aids and services, sign language interpreters may be the only
means of providing effective communication in a wide range of complex
and lengthy communications such as involving health, legal, or financial
matters.[^14] Analysis at 594. In the context of the Becker course, sign
language interpreters may be necessary to provide effective
communication to some persons, like Mr. Jex. In such circumstances, what
determines compliance is not whether an entity has given \"primary
consideration\" to the expressed choice of a person with a disability,
or whether the entity has consulted with the person. Regardless of the
procedure followed, the Becker company is legally responsible for
providing effective communication and is fully liable for failing to do
so.

B.  **[The Becker company has failed to meet the ADA standard and has
    effectively denied access to large components of its course for some
    people with disabilities]{.underline}.**

Students with hearing impairments who have to rely on the \'J-note\'
method are effectively excluded from class participation because they
have no real access to other students\' questions or instructors\'
responses, cannot ask their own questions, cannot be involved in
classroom discussions of sample exam problems, and are deprived of any
access to illustrations of accounting principles drawn from their
instructors\' own professional experiences. Like the auxiliary aids
requirement of section 302(b)(2)(A)(iii), proper analysis of the
\"participation\" and \"equal benefits\" provisions of sections
302(b)(1)(A)(i) and (ii) must take into account the \"full and equal
enjoyment\" standard of section 302(a). They must also be read in
conjunction with the auxiliary aids and services requirement of section
302(b)(2)(A)(iii). The Becker company violated the ADA to the extent
that it provided a means of communication that fell short of offering
opportunities for \"full and equal\" participation in the Becker course
and \"full and equal\" benefits of the course to persons with
disabilities.

The right to participate cannot be grounded on minimal opportunities for
participation compared to opportunities provided to others; instead, the
Becker company must provide opportunities for [full
participation]{.underline} in the various media and [in all
interaction]{.underline} that takes place in the Becker course. When a
student merely reads part of the information being conveyed and is
precluded from asking questions during class, for example, or when the
student is prevented from benefitting from the discussion of other
students\' questions, he or she is effectively removed from the learning
environment of his or her peers. Deprived of opportunities to apply,
evaluate, and question in class the material presented, the student is
foreclosed from full and equal participation in the educational process.
[Cf.]{.underline}, [Rothschild v. Grottenthaler]{.underline}, 907 F.2d
286, 291 (2d Cir. 1990) (under section 504, school district had to
provide sign language interpreters for the deaf parents of a hearing
child to enable them to participate fully in school-initiated activities
such as parent-teacher conferences).

When determining whether the Becker company discriminated against an
individual like Mr. Jex, the Court should apply the following test:
whether the student, in the absence of sign language interpreters, is
incapable of [fully and equally participating]{.underline} in the Becker
course, and thereby receiving the [full and equal benefits]{.underline}
of the course. Even if persons are capable of communicating in an
educational setting without the provision of sign language interpreters,
if they are denied full and equal participation in the absence of
interpreters, except in circumstances not applicable here,[^15]
companies like the Becker company are obligated to provide interpreters.

Through the \'J-note\' method, the Becker company supplies students with
hearing impairments a different course from the one provided to hearing
students, in violation of section 302(b). 42 U.S.C. §
12182(b)(1)(A)(iii) (\"It shall be discriminatory to provide an
individual \[with a disability\] . . . with a good, service, facility,
privilege, advantage, or accommodation that is [different]{.underline}
or separate from that provided to other individuals, . . . . \").
Although the \'J-notes\' contain a nearly verbatim transcript of the
taped lecture, they do not and cannot enable persons with hearing
impairments to participate in important aspects of the Becker course:
interaction, instructor feedback, motivation, affirmation, and
explanations of difficult concepts in the context in which they arise. A
person with a hearing impairment who is limited to reading the
\'J-notes\' and handouts for the entire four-hour or eight-hour class,
while others participate in these ways and maintain a focus on applying
information, receive a different and inferior \"service\" from the
Becker company.

II. **[The Becker company discriminated against Rod Jex.]{.underline}**

The Becker company now states that, when necessary for effective
communication, it will provide sign language interpreters. Defendant\'s
Opposition at 30. This concession suggests a proper recognition that
sign language interpreters are sometimes necessary to provide students
with hearing impairments with effective communication of and full
participation in the Becker course. The Becker company has failed to,
and indeed cannot, show that Mr. Jex is not an individual for whom sign
language interpreters are necessary in the context of the Becker course.
[See]{.underline}, [e.g.]{.underline}, Facts ¶¶ 146-63.

Throughout most of 1992, it was the Becker company\'s policy not to
provide sign language interpreters under any circumstances, and instead
to impose the \'J-note\' method upon students with disabilities who
requested auxiliary aids and services. [See]{.underline},
[e.g.]{.underline}, Facts ¶¶ 50, 54, 68-70. The company\'s
discriminatory behavior was particularly evident from its treatment of
Mr. Jex.[^16]

Mr. Jex\'s need for interpreters in the Becker course is evidenced by
his reliance on sign language as his primary method of communication. He
has used sign language in other post-graduate educational settings,
work-related conferences, religious and athletic activities, and in
virtually all other aspects of his daily life. Facts ¶¶ 46, 47, 51,
146-63; [see also]{.underline} discussion in U.S. Opposition at 11-13;
Kaplan Decl. at ¶ 24 (Exhibit 14). Mr. Jex had substantial auxiliary
aids and services in college: he used oral interpreters, tutors, and
note-takers. Facts ¶ 207. As he became proficient in sign language
during college, he requested sign language interpreters. Facts ¶ 193.
These requests evidence his perceived need for sign language
interpreters in educational settings. [See]{.underline} [Rothschild v.
Grottenthaler]{.underline}, 907 F.2d 286, 291 (1990). The Becker company
has recognized that \"self-assessment is a proper measure of
accommodation under the ADA . . . \" Defendant\'s Memorandum at 31
(citing to Dr. Kaplan\'s deposition at 127-29 (Exhibit 46)); [see
generally]{.underline} Defendant\'s Memorandum at 28-31; Defendant\'s
Opposition at 21-22.

Consistent with this need, Mr. Jex found the \'J-note\' method deprived
him of effective communication and equal participation in the Becker
course. Facts ¶¶ 59-62, 171, 172, 175, 212, 218.

Not only has the Becker company failed to contravene this showing of Mr.
Jex\'s need for an interpreter, it has also failed to meet its burden of
presenting specific facts to establish that there is a genuine dispute
as to whether Defendant was aware of Mr. Jex\'s requests for sign
language interpreters. [See]{.underline} discussion in U.S. Opposition
at 13; Facts ¶¶ 164-70, 172, 173, 175, 179-82. Additionally, the Becker
company has presented no evidence that company employees took any
affirmative step to ensure that Mr. Jex had effective communication of
and equal participation in the Becker course. In fact, the record
establishes that the opposite is true: although Mr. Jex repeatedly
communicated his needs to Becker company representatives including Mrs.
Dittmer, Ms. Garrett, Ms. Eby, Ms. Shera, Ms. Staiman, and Mr. Hammer,
each of them acted in a manner consistent with the company\'s policy of
refusing to provide sign language interpreters. Facts ¶ 206. No one ever
followed up on Mr. Jex\'s substantial efforts to engage in a meaningful
consultation about his communication needs. [Id.]{.underline}

Alternatively, even assuming for the sake of argument that Mr. Jex never
told company representatives that the \'J-note\' method was not working
for him, the company was put on notice when he brought his own sign
language interpreter. The fact that he brought his own interpreter
evidenced his belief that sign language interpreters were necessary for
him in the context of the Becker course. [Cf.]{.underline} [Rothschild
v. Grottenthaler]{.underline}, 907 F.2d 286, 291 (2d Cir. 1990) (the
fact that deaf parents of a hearing child provided their own sign
language interpreters for parent-teacher conferences was some evidence
of their belief that sign language interpreters were necessary for their
meaningful participation in those conferences). No one ever asked him
why he had gone to that trouble, despite the fact that Becker company
representatives were aware of the interpreter\'s presence. Facts ¶¶
177-78; [see also]{.underline} discussion in U.S. Opposition at 13,
17-18.

The Becker company additionally has not produced evidence of sufficient
specificity to refute Mr. Jex\'s testimony regarding the large amount of
classroom interaction that took place in the classes he attended,
including instructors\' clarifications of the taped lecture, questions
and responses, classroom discussion, etc., with respect to which he was
denied any opportunity to participate. Facts ¶¶ 171, 175-78; [see
also]{.underline} Bennett Dec. ¶ 6 (Exhibit 38); Baisey Dep. at 106-108
(Exhibit 44); Facts ¶¶ 20, 141. Although Mr. Baisey and other Becker
company representatives were present during four of the five lectures
Mr. Jex attended during the summer of 1992, Facts ¶¶ 171, 175-77,
neither they nor anyone else has denied the accuracy of his accounts.
Mr. Jex\'s observation that there is substantial classroom interaction
is corroborated by other students, including Ms. Palm (Exhibit 39 at ¶
5); Ms. Bennett (Exhibit 38 at ¶ 6); and Mr. Bergman (Exhibit 12 at ¶
5). Defendant has not presented sufficient specific evidence to preclude
summary judgment for the United States on this issue.

Although the Becker company states generally that classroom interaction
is minimal, it does not have sufficiently specific facts to support this
broad claim. [See]{.underline} Defendant\'s Memorandum at 4 (citing
Baisey Dep. at 105-107, 133-41). Mr. Jex reports that many instructors,
such as Murray Bradford, Thomas Cooke, and Gary Dittmer, interrupt the
taped lecture far more often than does Mr. Baisey. Facts ¶ 184. Mr.
Jex\'s testimony is corroborated by Ms. Garrett\'s comments during a
June 26, 1992 conversation with Mr. Jex that \"at least one of the
instructors in D.C. do\[es\] put an awful lot of himself into the
program which would not be \[appropriate\] for you.\" Exhibit F[^17] to
Jex Supp. Dec. (Exhibit 36) (where, from the context of a later
statement made by Ms. Garrett, it appears that this instructor is Gary
Dittmer). [See also]{.underline} Jex Supp. Dec. ¶ 16 (Exhibit 36).

Further assuming for the sake of argument that Mr. Jex did not inform
Becker company representatives that he was having trouble with the
\'J-note\' method, his failure to do so is excusable under the futile
gestures doctrine. [See]{.underline} discussion in U.S. Opposition at
38-40. Because the Becker company uniformly told him prior to December
1992 that it would not provide sign language interpreters regardless of
his disability and communication skills, it was not incumbent upon him
to keep asking.

In its Opposition, the Becker company suggests that in the spring and
summer of 1992, it only wanted Mr. Jex to use the \'J-notes\' on a trial
basis. Defendant\'s Opposition at 18 (citing Defendant\'s Exhibit 21).
This suggestion is a self-serving, [post hoc]{.underline} attempt to
revise history. The record contains no suggestion that the Becker
company ever represented, prior to December 1992, that it would provide
Mr. Jex with sign language interpreters if the \'J-note\' method proved
unsuccessful for him. Indeed, the record is replete with statements to
the contrary. [See]{.underline}, [e.g.]{.underline}, Facts ¶ 206.

The Becker company has not met its burden under [Celotex]{.underline}
and [Anderson v. Liberty Lobby]{.underline} that it come forward with
specific evidence demonstrating that there are genuine issues remaining
for trial. The Court should declare that the Becker company\'s treatment
of Mr. Jex violated the ADA.

III. **[The Court should grant the United States\' request for equitable
     relief]{.underline}**.

The Becker company suggests that the United States\' request for
equitable relief is too general in nature to be granted. Defendant\'s
Opposition at 29-30. Defendant is correct that injunctive relief should
contain sufficient specificity to give the Becker company adequate
notice of the types of conduct prohibited by the injunction. To that
end, the United States requests that the Court issue a declaratory
judgment that Defendant violated sections 302 and 309 of title III, and
hold further proceedings to determine the appropriate form of specific
injunctive relief. In order to ensure that the Becker company does not
continue its discriminatory practices, the Court, with substantial input
from the parties, should craft language requiring the Becker company (1)
to provide sign language interpreters and other auxiliary aids and
services in certain specified circumstances, such as when the student
relies on sign language in his or her daily life or has relied on sign
language in other educational settings; (2) to report semi-annually all
requests for auxiliary aids and services and the disposition thereof to
the United States for monitoring; and (3) to refrain from engaging in
other specified categories of discriminatory behavior. Each of these
suggested injunctive provisions, to be articulated in greater detail at
a future proceeding, falls within the broad categories outlined by the
government in its Complaint. All are appropriate here.

A declaratory judgment by the Court can, and should, be confined to the
facts before the Court. The law requires that entities assessing the
extent of their obligation to provide auxiliary aids and services
carefully consider the factual context of the communication setting.
Consistent with this approach, the Court\'s declaration that the Becker
company violated the ADA by failing to provide sign language
interpreters and other appropriate auxiliary aids and services will not
impact all entities in the way that it will affect the Becker company
and others in fields such as exam preparation courses or education.
Restaurants, department stores, hotels, and other related industries
generally will not be affected in the same way. For example, holding
that sign language interpreters may be necessary for some students in
the Becker course would not mean that a fast-food restaurant would have
to provide sign language interpreters for its customers with hearing
impairments. The nature and setting of the communication is vastly
different.

> **IV. [The Court should award damages to Mr. Jex and civil penalties
> to the United States]{.underline}**.

The Becker company is liable to Mr. Jex for its failure to provide him
with the full and equal enjoyment of the Becker course by failing to
provide him with effective communication and opportunities for full and
equal participation. Pain and suffering may form a legitimate basis for
monetary relief under title III. Analysis at 626. The record reflects
that Mr. Jex suffered from the Becker company\'s discriminatory
treatment of him. [See]{.underline}, [e.g.]{.underline}, Facts ¶¶
171-72, 175, 217. To avoid such damages, Defendant must therefore come
forward with specific facts establishing that damages are inappropriate
in this case. [Anderson v. Liberty Lobby, Inc.]{.underline}, 477 U.S.
242, 250 (1986). The Becker company has not met this burden: all of its
arguments concern the appropriate amount of damages for Mr. Jex, not
whether damages [per se]{.underline} should be awarded to him. There is
simply no evidence to establish that Mr. Jex did not suffer, both
economically and psychologically, from Defendant\'s discrimination. It
is only the quantification of his suffering that remains at issue.

The Becker company also argues that civil penalties are inappropriate.
Defendant\'s Opposition at 31-32. Again, it has not met its burden under
[Anderson v. Liberty Lobby]{.underline} of demonstrating specific facts
that go to the imposition of civil penalties, [per se]{.underline}.
Defendant has only argued that it has attempted, in good faith, to
comply with the law. Good faith is only relevant to the quantification
of civil penalties. [See generally]{.underline} 42 U.S.C. §
12188(b)(2)(C)(5). Furthermore, Congress has said that \"The \'good
faith\' standard referred to in this section is not intended to imply a
willful or intentional standard \-- that is, an entity cannot
demonstrate good faith simply by showing that it did not willfully,
intentionally, or recklessly disregard the law.\" H.R. Rep. No. 485,
101st Cong., 2d Sess., pt. 2 at 128 (1990) (Committee on Education and
Labor). Here, the Becker company cannot assert that its provision of the
\'J-notes\' insulates it from the imposition of civil penalties.

In its discussion of the type of good faith conduct necessary to defeat
the imposition of civil penalties, Congress stated, \"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.\" [Id.]{.underline} Here, the Becker
company cannot complain that it was unaware of Mr. Jex\'s need for sign
language interpreters; civil penalties are particularly appropriate
because Defendant had actual and repeated notice of Mr. Jex\'s request
for sign language interpreters. Facts ¶ 260.

Courts should impose civil penalties where, as here, they will
\"vindicate the public interest.\" H.R. Rep. 485, 101st Cong., 2d Sess.,
pt. 3 at 68 (1990) (Judiciary Committee). The Becker company is very
large: nationwide, approximately thirty percent of all accountants who
pass the CPA examination are Becker course graduates. Facts ¶¶ 7, 8.
Because the Becker company is a recognized industry leader in the
crucial area of test preparation courses, imposition of civil penalties
in this case will greatly deter similar companies from violating the
ADA. Educational and professional opportunities for persons with
disabilities will increase, thus furthering the fundamental goal of the
ADA: \"to bring persons with disabilities into the economic and social
mainstream of American life.\" S.Rep. No. 116, 101st Cong., 1st Sess. at
2 (1990) (Committee on Labor and Human Resources).

The Court should declare that civil penalties against the Becker company
are appropriate to vindicate the public interest, and should hold
further evidentiary proceedings to determine the amount of penalties to
be imposed. At this future proceeding, \"the \[C\]ourt should consider
the nature and circumstances of the violation, the degree of
culpability, . . . the financial circumstances of the violator, the goal
of deterrence, and other matters as justice may require.\" H.R. Rep. No.
485, 101st Cong., 2d Sess., pt. 3 at 68 (1990) (Judiciary Committee).

**[Conclusion]{.underline}**

There are no remaining factual disputes with respect to the United
States\' request for a declaratory judgment, injunctive relief, or the
imposition of monetary damages for Mr. Jex and civil penalties. This
Court should enter partial summary judgment in the government\'s favor.
The Court should further allow the United States to complete its
discovery of the Becker company\'s fiscal status as relevant to the
issue of civil penalties, and hold proceedings as to liability with
respect to

other former Becker students, the appropriate amount of damages to be
awarded to Mr. Jex, and civil penalties to the United States.

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

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

MARC DUBIN

MARY LOU MOBLEY

Attorneys

KATE NICHOLSON

Public Access Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

[^1]: ^?^ Genuine factual disputes exist as to claims made on behalf of
    Mr. Summers and others, the appropriate amount of civil penalties,
    and damages for Mr. Jex. The United States has not sought summary
    judgment on these issues, and will not address Defendant\'s
    arguments concerning these matters as they are beyond the scope of
    the United States\' Motion for Partial Summary Judgment.

[^2]: ^?^ The Becker company has utterly failed to address Count II of
    the United States\' Complaint, in which the government alleged that
    Defendant had violated section 309 of the ADA, 42 U.S.C. § 12189.
    [See]{.underline} discussion in Corrected Memorandum of Points and
    Authorities in Support of United States Motion for Partial Summary
    Judgment (\"U.S. Corrected Memorandum\") at 38-40, and United
    States\' Opposition to Defendant\'s Motion for Summary Judgment
    (\"U.S. Opposition\") at 23, which are incorporated herein by
    reference.

[^3]: ^?^ Paragraphs 1-112 of the United States \"Facts\" were submitted
    as \"Corrected Rule 108(h) Statement,\" Exhibit B to Motion of
    October 12, 1993. Paragraphs 113-246 were submitted as \"Rule 108(h)
    Statement in Opposition to Defendant\'s Motion for Summary
    Judgment\" (filed Oct. 25, 1993).

    Likewise, United States\' exhibits 1-32 were submitted as
    \"Corrected Exhibits 1-32,\" Exhibit C to the Motion for Leave to
    Submit (filed Oct. 12, 1993). Exhibits 33-45 were filed in support
    of the U.S. Opposition. Exhibits 46 and 47 are attached hereto.

[^4]: ^?^ [Accord]{.underline}, ADA title II, 42 U.S.C. §§ 12131-65
    (1990) (State and local government programs); section 504 of the
    Rehabilitation Act of 1973, 29 U.S.C. § 794 (1973) (federally funded
    programs) (amended by Pub.L. 95-602, Title I, §§ 119, 122(d), Nov.
    6, 1978, 92 Stat. 2982, 2987). [See]{.underline} discussion of
    section 504\'s regulations, [infra]{.underline} at 9-12.

[^5]: ^?^ The Department\'s title III regulation and published
    interpretation of the regulation are entitled to controlling weight
    unless they are plainly erroneous. [Stinson v. United
    States]{.underline}, 113 S. Ct. 1913, 1919 (1993) (citations
    omitted). The United States hereby incorporates by reference its
    discussion of judicial deference to agency interpretation in U.S.
    Opposition at 29-33.

[^6]: ^?^ Policy modifications are necessary as established through the
    discussion of auxiliary aids and services, [infra]{.underline} at
    3-8, and opportunities for equal participation, [infra]{.underline}
    at 15-18. The United States has already shown that the necessary
    policy modifications are reasonable, U.S. Corrected Memorandum at
    37-38, U.S. Opposition at 40-41, and hereby incorporates these
    arguments by reference.

[^7]: ^?^ [See]{.underline} discussion of Mr. Jex\'s and former Becker
    students\' experiences with the \'J-notes\' in the U.S. Corrected
    Memorandum at 12, 14, 18-20; U.S. Opposition at 9-11; and Facts ¶¶
    57-62, 72, 89-101, 111, 171, 172, 218.

[^8]: ^?^ The Becker company also concedes that each person with a
    hearing impairment faces unique needs and has different
    communication concerns that must be taken into account. Defendant\'s
    Opposition at 28. This concession further demonstrates the futility
    of making decisions that will affect future students on the basis of
    former students\' exam results. Significantly, this concession
    contrasts sharply with the Becker company\'s earlier assertion that,
    in its professional opinion, the \'J-note\' method would be more
    effective for all students with hearing impairments than would be
    sign language interpreters. Defendant\'s Memorandum at 8; Letter of
    Dec. 17, 1992, from N. Becker to J. Dunne (Defendant\'s Exhibit 36).

[^9]: ^?^ Although the Becker company sets out \"apprehension\" as a
    talisman for effective communication, it never articulates what
    level of \"apprehension\" might be required by section 302. Instead,
    Defendant states merely that its communication was effective because
    some former Becker students who used the \'J-note\' method passed
    some or all of the CPA examination, and argues that, therefore, the
    \'J-note\' method worked for them. [See]{.underline} discussion of
    the Becker company\'s application of a results-oriented test,
    [supra]{.underline} at 4-6.

[^10]: ^?^ In fact, Congress explicitly recognized that title III
    extends section 504\'s prohibition of discrimination to private
    entities:

    > Section 504 of the Rehabilitation Act of 1973 prohibits Federal
    > agencies and recipients of Federal financial assistance from
    > discriminating against persons with disabilities. The purpose of
    > title III of the legislation is to extend these general
    > prohibitions against discrimination to privately operated public
    > accommodations and to bring individuals with disabilities into the
    > economic and social mainstream of American life. Title III
    > fulfills these purposes in a clear, balanced, and reasonable
    > manner.

    S.Rep. No. 116, 101st Cong., 1st Sess. at 58 (1990) (Committee on
    Labor and Human Resources).

[^11]: ^?^ While section 504 does not itself contain the phrase \"full
    and equal enjoyment,\" 29 U.S.C. § 794, the relevant statutory and
    regulatory provisions under title III defining the scope of \"full
    and equal enjoyment,\" namely the auxiliary aids provision and the
    regulatory mandate of effective communication, are expressly drawn
    from interpretations of section 504\'s prohibition of
    discrimination.

[^12]: ^?^ [See]{.underline} discussion of section 302(b)(1)(A)(i)
    (equal opportunity to participate) and (ii) (unequal benefits),
    [infra]{.underline} at 15-18.

[^13]: ^?^ H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 at 107 (1990)
    (Committee on Education and Labor) (\"The Committee expects that the
    public accommodation will consult with the individual with a
    disability before providing a particular auxiliary aid or
    service\").

[^14]: ^?^ [See]{.underline} discussion in U.S. Corrected Memorandum at
    26; U.S. Opposition at 27-28.

[^15]: ^?^ The Becker company has not raised the affirmative defenses of
    fundamental alteration or undue burden.

[^16]: ^?^ There are material issues of fact as to Mr. Summers and
    others on whose behalf the United States may seek damages. Facts ¶¶
    230, 231, 239, 240.

    Counsel\'s statements made during the September 23, 1993 hearing
    before the Honorable Alan Kay, United States Magistrate Judge, do
    not preclude the United States from asserting claims on behalf of
    persons in addition to Mr. Jex and Mr. Summers, as argued by
    Defendant. The United States is not foreclosed from carrying out its
    intent to seek damages on behalf of Mr. Jex and [all other
    similarly-situated individuals.]{.underline} [See]{.underline}
    Complaint at ¶¶ 15, 17, and E. In fact, the Court\'s order requiring
    Defendant to provide the government with identifying information was
    done for the express purpose, [inter alia]{.underline}, of allowing
    the government the opportunity to determine if Defendant violated
    the law with respect to individuals besides Mr. Jex and Mr. Summers.

[^17]: ^?^ This exhibit is one of many transcripts of conversations
    between Mr. Jex and Becker company employees. These transcripts were
    made concurrently with the actual conversations, through a TDD
    (telecommunication device for deaf persons) with print-out
    capabilities. They have been authenticated by Mr. Jex in his
    Supplemental Declaration of Oct. 21, 1993 (Exhibit 36), in which the
    substance of these conversations also appears.

    The TDD transcripts are admissible as evidence. First, to the extent
    that they serve as notice to Mr. Jex of the Becker company\'s
    official policy at various dates, they have a separate legal
    significance beyond the truth of the matter asserted, and therefore
    do not fit within the definition of hearsay. Fed. R. Evid. 801(c).
    Additionally, the Becker company employees\' statements reflected in
    the TDD transcripts are offered as evidence against Defendant and
    are \"statement\[s\] of which the party has manifested an adoption
    or belief in \[their\] truth.\" Fed. R. Evid. 801(d)(2)(B).
    [See]{.underline}, [e.g.]{.underline}, Defendant\'s Memorandum at 5
    (citing Defendant\'s Exhibit 17). Moreover, they are
    \"statement\[s\] by the party\'s agent or servant concerning a
    matter within the scope of the agency or employment, made during the
    existence of the relationship . . . \" Fed. R. Evid. 801(d)(2)(D).