UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ACCESS LIVING OF METROPOLITAN )

CHICAGO, )

)

and )

)

SHEILA AKHTAR, LARRY BIONDI, )

W. CAROL CLEIGH, MARY DELGADO, )

JAMES A. FERNEBORG, JENNIFER HART, ) No. 00 C 0770

SHARON LAMP, RENE DAVID LUNA, and )

J. FREDERICK STARK, ) Judge James F. Holderman

)

Plaintiffs, ) Magistrate Judge Schenkier

)

v\. )

)

CHICAGO TRANSIT AUTHORITY, )

)

Defendant. )

**UNITED STATES' MEMORANDUM OF LAW AS AMICUS CURIAE**

The United States of America, by its undersigned counsel, submits this
Memorandum of Law as *Amicus* *Curiae*.

[TABLE OF CONTENTS]{.underline}

INTRODUCTION 1

ARGUMENT 2

I. Legal standards applicable to the motion for summary judgment. 2

II\. Overview of Title II of the ADA and Section 504 of the
Rehabilitation Act 2

III\. Group and Individual Standing 6

A. General Standing Requirements 6

1\. Article III Standing 7

2\. Prudential Limitations 8

B. Individual Standing To Sue Under The ADA\
And The Rehabilitation Act 8

C. A Public Interest Group's Representational Standing\
to Sue Under The ADA and the Rehabilitation Act 10

D. A Public Interest Group's Standing to Sue In Its Own\
Right Under The ADA and the Rehabilitation Act 13

1\. Article III Standing 13

2\. Prudential Limits 14

IV\. The Need to Prove Intentional Discrimination Under\
the ADA and the Rehabilitation Act. 19

V. The Availability of Injunctive Relief Under the ADA and\
the Rehabilitation Act. 24

CONCLUSION 26

[TABLE OF CONTENTS]{.underline}

[FEDERAL CASES]{.underline}

[Aikins v. St. Helena Hosp.]{.underline}, 843 F.Supp. 1329
(N.D.Cal.1994) 8

[Allen v. Wright]{.underline}, 468 U.S. 737 (1984) 6

[Anderson v. Liberty Lobby]{.underline}, 477 U.S. 242 (1986) 2

[Bartlett v. New York State Board of Law Examiners]{.underline}, 156
F.3d 321 (2d Cir. 1998), [judgment vacated by]{.underline} 527 U.S. 1031
(1999) 22

[Chontos v. Rhea]{.underline}, 29 F.Supp. 2d 931 (N.D. Ind. 1998) 21

[Comer v. Cisneros]{.underline}, 37 F.3d 775 (2d Cir. 1994) 18

[Concerned Parents to Save Dreher Park Center v. City of West Palm
Beach]{.underline}, 846 F. Supp. 986 (S.D. Fla. 1994) 15, 17

[Crowder v. Kitigawa]{.underline}, 81 F.3d 1480 (9th Cir. 1996) 19

[Doe v. County of Montgomery, Illinois]{.underline}, 41 F.3d 1156 (7th
Cir. 1994) 9

[Doe v. National Board of Medical Examiners]{.underline}, 199 F.3d 146
(3d Cir. 1999) 8

[EEOC v. Sears, Roebuck & Co]{.underline}, 233 F.3d 432 (7th Cir. 2000)
2

[Epicenter of Steubenville, Inc. v. City of Steubenville]{.underline},
924 F. Supp. 845 (S.D. Ohio 1996) 18

[Family & Children\'s Center, Inc. v. School City of
Mishawaka]{.underline}, 13 F.3d 1052 (7th Cir. 1994), [cert.
denied]{.underline}, 513 U.S. 961 (1994) 7

[Ferguson v. City of Phoenix]{.underline}, 157 F.3d 668 (9th Cir. 1998)
20, 22, 25

[Finley v. Giacobbe]{.underline}, 827 F. Supp. 215 (S.D.N.Y. 1993) 18

[Galloway v. District of Columbia Superior Court]{.underline}, 816 F.
Supp. 12 (D.D.C. 1993) 25

[Gebser v. Lago Vista Ind. School Dist.]{.underline}, 524 U.S. 274
(1998) 21-24

[Gladstone Realtors v. Village of Bellwood]{.underline}, 441 U.S. 91
(1979) 7, 8, 17

[Greater Los Angeles Council on Deafness, Inc. v. Zolin]{.underline},
812 F.2d 1103 (9th Cir. 1987) 16

[Growth Horizons, Inc. v. Delaware County, Pa.]{.underline}, 983 F.2d
1277 (3d Cir. 1993) 15

[Guardians Association v. Civil Service Commission of New
York]{.underline}, 463 U.S. 582 (1983) 20

[Havens Realty Corp. v. Coleman]{.underline}, 455 U.S. 363 (1982) 13, 15

[Hedberg v. Indiana Bell Tel. Co.]{.underline}, 47 F.3d 928 (7th
Cir.1995) 2

[Helen L. v. DiDario]{.underline}, 46 F.3d 325 (3rd Cir. 1995) 3

[Henrietta D. v. Guiliani]{.underline}, 119 F.Supp.2d 181 (E.D.N.Y.
2001) 3

[Hoepfl v. Barlow]{.underline}, 906 F.Supp. 317 (E.D. Va. 1995) 8

[Hunt v. Washington Apple Advertising Comm\'n]{.underline}, 432 U.S. 333
(1977) 10-13

[Independent Housing Servs. v. Fillmore Ctr. Assocs]{.underline}., 840
F. Supp. 1328 (N.D. Cal. 1993) 16

[Innovative Health Systems, Inc., v. City of White Plains]{.underline},
117 F.3d 37 (2d Cir. 1997) 14-15, 17-18

[International Union, United Automobile, Aerospace, and Agricultural
Implement Workers of America v. Brock]{.underline}, 477 U.S. 274 (1986)
11, 12

[Joint Anti-Fascist Refugee Comm. v. McGrath]{.underline}, 341 U.S. 123
(1951) 11

[Kessler Inst. for Rehabilitation, Inc. v. Mayor and Council of Essex
Fells]{.underline}, 876 F. Supp. 641 (D.N.J. 1995) 16-18

[Larimer v. Dayton Hudson Corporation]{.underline}, 137 F.3d 497 (7th
Cir.1998) 2

[Liberty Resources v. Southeastern Pennsylvania Transportation
Authority]{.underline}, 2001 WL 15960 16

[Lujan v. Defenders of Wildlife]{.underline}, 504 U.S. 555 (1992) 7, 9,
13, 14

[Mary M. v. North Lawrence Communication School Corp.]{.underline}, 131
F.3d 1220 (7th Cir. 1997)\
24

[McPherson v. Michigan High School Athletic Assn.]{.underline}, 119 F.3d
453 (6th Cir. 1997) 19

[Midgett v. Tri-County Metropolitan Transportation District of
Oregon]{.underline}, 74 F. Supp. 2d 1008 (D.Or. 1999) 20

[National Organization for Women, Inc., v. Scheidler]{.underline}, 897
F. Supp. 1047 (N.D. Ill. 1995)\
10

[United Handicapped Fed\'n v. Andre]{.underline}, 558 F.2d 413 (8th Cir.
1977) 16

[Nodleman v. Aero Mexico]{.underline}, 528 F. Supp. 475 (C.D. Cal. 1981)
16, 17

[Norcross v. Sneed]{.underline}, 755 F.2d 113 (8th Cir. 1985) 19

[Oak Ridge Care Center v. Racine County, Wis.]{.underline}, 896 F. Supp.
867 (E.D. Wis. 1995) 13, 15, 17-18

[Olmstead v. L.C.]{.underline}, 1997 WL 148674 (N.D.Ga. 1997),
[aff'd]{.underline} 138 F.3d 893 (11^th^ Cir. 1998), [aff'd]{.underline}
527 U.S. 581 (1999) 25

[Pandazides v. Virginia Board of Education]{.underline}, 13 F.3d 823
(4th Cir. 1994) 22

[Parker v. Universidad de Puerto Rico]{.underline}, 225 F.3d 1 (1st Cir.
2000) 20

[Plotkin v. Ryan]{.underline}, 239 F.3d 882 (7th Cir. Feb. 6, 2001) 7

[Powers v. MJB Acquisition Corp.]{.underline}, 184 F.3d 1147 (10th Cir.
1999) 20

[Prewitt v. United States Postal Service]{.underline}, 662 F.2d 292 (5th
Cir. 1981) 19

[Proctor v. Prince George's Hospital Center]{.underline}, 32 F. Supp. 2d
820 (D. Md. 1998) 22

[Pushkin v. Regents of the Univ. of Colorado]{.underline}, 658 F.2d 1372
(10th Cir. 1981) 19

[Raver v. Capitol Area Transit]{.underline}, 887 F. Supp. 96 (M.D. Pa.
1995) 15

[Retired Chicago Police Ass\'n v. City of Chicago]{.underline}, 7 F.3d
584 (7th Cir.1993) 10-13

[Rizzo v. Goode]{.underline}, 423 U.S. 362 (1976) 25

[Sierra Club v. Morton]{.underline}, 405 U.S. 727 (1972) 7

[Smith v. Metropolitan School District Perry Township]{.underline}, 128
F.3d 1014 (7th Cir. 1997) 23-24

[Sullivan v. City of Pittsburgh]{.underline}, 811 F.2d 171 (3d Cir.
1987) 15

[Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking,
Inc.]{.underline}, 176 F.3d 1004 (7th Cir. 1999)

25

[Tugg v. Towey]{.underline}, 864 F.Supp. 1201 (S.D. Fla. 1994) 3, 15,
17, 18

[Warth v. Seldin]{.underline}, 422 U.S. 490 (1975) 8, 10, 12, 14, 17

[Washington v. Indiana High School Athletic Assn.]{.underline}, 181 F.3d
840 (7th Cir. 1999) 19

[Williams v. United States]{.underline}, 704 F.2d 1162 (9th Cir. 1983)
16

[FEDERAL STATUTES]{.underline}

29 U.S.C. § 794 1, 3

29 U.S.C. § 794a 4, 14, 17, 20, 24

42 U.S.C. § 12101 4

42 U.S.C. § 12132 3, 4, 14

42 U.S.C. § 12133 14, 17, 20, 24

42 U.S.C. § 12142 5

42 U.S.C. § 2000d 24

42 U.S.C. § 2000d-1 4

[FEDERAL REGULATIONS]{.underline}

28 C.F.R. Part 35 3

49 C.F.R. Part 27 4

49 C.F.R. Part 37 5

49 C.F.R. § 37.1 4

49 C.F.R. § 37.11 4

49 C.F.R. § 37.41 5

49 C.F.R. § 37.43 5

49 C.F.R. § 37.71 5

49 C.F.R. § 37.73 5

49 C.F.R. § 37.161 5

49 C.F.R. § 37.163 5

[INTRODUCTION]{.underline}

On February 8, 2000, Access Living of Metropolitan Chicago and nine
individuals (collectively, "the Plaintiffs") filed the Complaint in this
case. The Complaint alleges that the Chicago Transit Authority is in
violation of title II of the Americans with Disabilities Act, 42 U.S.C.
§ 12131 - 12165 ("ADA"), and Section 504 of the Rehabilitation Act, 29
U.S.C. § 794 ("Section 504\"). The Plaintiffs allege that there has been
a "systemic failure \[by the CTA\] to provide basic and necessary public
transportation services to plaintiffs and other persons with
disabilities \.... On a persistent and ongoing basis, defendant has
discriminated against plaintiffs by denying them equal access to public
buses and trains\[.\]" See Complaint ¶ 1.

On February 23, 2001, the Chicago Transit Authority ("CTA") filed a
Motion for Summary Judgment.^1^[^1] In its Motion, CTA argues that it is
entitled to summary judgment, in part, because the plaintiffs do not
have standing, have not established a prima facie case of intentional
discrimination, and have failed to establish that they are entitled to
injunctive relief.

On April 9, 2001, the Court granted the United States leave to
participate in this case as an amicus curiae. This amicus curiae brief
advises the Court on several legal issues raised by CTA's Motion for
Summary Judgment. First, this brief describes the circumstances under
which individuals and groups should have standing to make claims under
the ADA and Section 504. Second, this brief discusses when it is
necessary that intentional discrimination be proven in a claim under
title II of the ADA, and describes the types of evidence that would help
establish intent to discriminate. Finally, this brief advises the Court
on the propriety of an order of injunctive relief in a case arising
under the ADA and Section 504. In this brief, the United States does not
address the merits of the Plaintiffs' claims. Instead, this brief
addresses the legal issues raised by CTA's Motion for Summary Judgment
and provides the Court with guidance regarding how to apply the
appropriate legal standards to the factual allegations raised by the
Plaintiffs.

[ARGUMENT]{.underline}

**I. Legal standards applicable to the motion for summary judgment.**

In order to prevail in its Motion for Summary Judgment, the CTA must
meet a high standard of proof. Summary judgment is appropriate only when
the evidence fails to demonstrate that there is a genuine issue of
material fact, and that the moving party is entitled to judgment as a
matter of law. Fed. Rule Civ. Pro. 56(c). The Plaintiffs in this case
can establish that there is a genuine issue of material fact if they
provide sufficient evidence that would allow a reasonable jury to find
for them at trial. [Anderson v. Liberty Lobby]{.underline}, 477 U.S.
242, 248 (1986). Summary judgment is improper if there is a "reasonably
contestable issue of fact that is potentially outcome-determinative."
[EEOC v. Sears, Roebuck & Co]{.underline}, 233 F.3d 432, 436 (7^th^ Cir.
2000). To determine whether such an issue of fact exists, the court must
"review the record in the light most favorable to the nonmoving party
and. . . draw all reasonable inferences in that party\'s favor."
[Larimer v. Dayton Hudson Corporation]{.underline}, 137 F.3d 497, 500
(7th Cir.1998). Only \"if no reasonable jury could find for the party
opposing the motion" may summary judgment be granted. [Hedberg v.
Indiana Bell Tel. Co.]{.underline}, 47 F.3d 928, 931 (7th Cir.1995).

**II. Overview of Title II of the ADA and Section 504 of the
Rehabilitation Act**

Title II of the Americans with Disabilities Act ("ADA") provides:

No qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.

42 U.S.C. § 12132.^2^[^2]

The general nondiscrimination provision of Section 504 of the
Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United
States, as defined in section 705(20) of this title, shall, solely by
reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance or under any
program or activity conducted by any Executive agency or by the United
States Postal Service.

29 U.S.C. § 794.

Because the terms of title II of the ADA and Section 504 of the
Rehabilitation Act are so similar, courts use similar standards in
interpreting them. "Because title II of the ADA essentially extends the
antidiscrimination prohibition embodied in section 504 to all actions of
State and local governments, the standards adopted in this part are
generally the same as those required under section 504 for federally
assisted programs." 28 C.F.R. Part 35, App. A at 477. [See
also]{.underline} [Helen L. v. DiDario]{.underline}, 46 F.3d 325, 330
n.7 (3^rd^ Cir. 1995); [Henrietta D. v. Guiliani]{.underline}, 119
F.Supp.2d 181, 206 (E.D.N.Y. 2001)("\[b\]ased upon the close
relationship between the two acts, cases interpreting the Rehabilitation
Act are considered persuasive authority for interpreting the ADA,"
[quoting]{.underline} [Tugg v. Towey]{.underline}, 864 F.Supp. 1201,
1205 n.4 (S.D. Fla. 1994)).

The ADA was enacted in 1990 to eliminate pervasive societal
discrimination against individuals with disabilities. 42 U.S.C. § 12101.
In enacting the ADA, Congress found that individuals with disabilities
had historically been subject to isolation and segregation, and had been
discriminated against in \"such critical areas as employment,. . .
transportation, . . . recreation, . . . health services, . . . and
access to public services.\" [Id.]{.underline} at § 12101(a)(2), (3).
The ADA was meant to effect a considerable change in the ways in which
private businesses and State and local governments treat and serve
individuals with disabilities. The ADA\'s coverage is accordingly broad
\-- prohibiting discrimination on the basis of disability in employment,
State and local government programs, services, and activities, public
and private transportation systems, telecommunications, public
accommodations, and commercial facilities.

Title II is divided into two parts. Subtitle A, 42 U.S.C. §§
12131-12134, generally prohibits disability-based discrimination by
state and local government entities. Subtitle B, 42 U.S.C. §§
12141-12165, sets forth specific requirements governing public
transportation services provided to individuals with disabilities. The
U.S. Department of Transportation ("DOT") is responsible for the
implementation of Subtitle B, and has issued a regulation implementing
that subtitle. [See]{.underline} 49 C.F.R. §§ 37.1 [et seq]{.underline}.
The Department of Transportation also has significant administrative and
enforcement responsibilities regarding the title II transportation
provisions at issue in this action. [See]{.underline} 49 C.F.R. §
37.11(a); 49 C.F.R. Part 27, subpt. F. If the Department of
Transportation believes a violation has occurred, and voluntary
compliance efforts are unsuccessful, it may refer the matter to the
Department of Justice for judicial action. 42 U.S.C. § 12132; 29 U.S.C.
§ 794a; 42 U.S.C. § 2000d-1.

Pursuant to title II, as well as standards set forth in DOT regulations,
49 C.F.R. parts 27 and 37, public transportation entities are required
to construct and alter facilities to be accessible and to ensure that
certain vehicles are accessible. [See]{.underline} 42 U.S.C. §§ 12142
(vehicles), 12146 (new facilities), 12147 (alteration of existing
facilities). [See]{.underline} [also]{.underline} 49 C.F.R. § 37.41
(construction of new facilities); 49 C.F.R. § 37.43(a)(1) (alteration of
existing facilities); 49 C.F.R. §§ 37.71(a) and 37.79 (new vehicles); 49
C.F.R. §§ 37.73(a), (b) and 37.81(a), (b) (used vehicles). When
providing transportation services, the entities are required to maintain
in "operative condition" the accessible features of their facilities and
vehicles, including lifts and other means of access to vehicles, and
elevators. 49 C.F.R. §§ 37.161(a), (b). The DOT regulations set forth
detailed requirements for the maintenance and operation of lifts,
including establishing a system of "regular and frequent" maintenance
checks, taking the vehicle out of service when the lift is found to be
inoperative (within limits), and providing alternative transportation
when the anticipated arrival time of the next accessible vehicle exceeds
30 minutes. 49 C.F.R. § 37.163.

DOT regulations specifically explain that this requirement does not
prohibit "isolated or temporary interruptions in service or access due
to maintenance or repairs." 49 C.F.R. § 37.161(c). DOT regulations
explain that repairs must be made promptly. 49 C.F.R. pt. 37, App. D at
533. The preamble to the regulations further states that "repairing
accessible features must be made a high priority," and that
"\[a\]llowing obstructions or out of order accessibility equipment to
persist beyond a reasonable period of time would violate this Part, as
would mechanical failures due to improper or inadequate maintenance."
[Id.]{.underline} In discussing § 37.163, the preamble also provides
that a failure by public entities to arrange prompt repair of
inoperative elevators, lifts, or other accessibility-related equipment
would "also violate this part." [Id.]{.underline} The preamble requires
that "an aggressive preventive maintenance program for lifts is
essential." [Id.]{.underline}

The Plaintiffs allege that Defendant, by failing to make its bus and
train systems readily accessible to and usable by people with
disabilities, has discriminated against them based on their
disabilities. Specific allegations involving Defendant's "systemic
failure" to provide Plaintiffs with equal access to its buses include
its repeated failure to address the following: malfunctioning or
non-functioning mechanical lifts, bus drivers inadequately trained in
the use of mechanical lifts, and failure by bus drivers to call out
stops and to pick up riders with disabilities waiting at bus stops.
Complaint ¶ 2. Plaintiffs further allege that Defendant's "systemic
failure" to provide equal access to Plaintiffs on its trains includes
repeated failures to: implement a system to ensure that mobility
impaired riders who use a wheelchair can embark and disembark safely;
adequately train station agents in the use of the "gap-filler;"ensure
that station elevators are maintained in working order; and, ensure that
train personnel call out train destinations and stops. Complaint ¶ 3.

** III. Group and Individual Standing**

**A. General Standing Requirements**

Defendants claim that Access Living does not have standing to sue in its
own right or on behalf of its current and future clients. Defendants'
Motion for Summary Judgment at 17. More particularly, Defendants claim
that Access Living does not have standing to sue in its own right under
title II of the ADA because it is not "a qualified individual with a
disability," as that term is employed under the Act, and that it cannot
sue on behalf of its current and future clients inasmuch as Access
Living cannot base its claims upon the rights of third persons.
[Id.]{.underline}

Article III of the United States Constitution confines federal courts to
adjudicating actual "cases" and "controversies." [Allen v.
Wright]{.underline}, 468 U.S. 737 (1984). Among the several doctrines
"'serv\[ing\] to identify those disputes which are appropriately
resolved through the judicial process' \... is the doctrine of
standing." [Lujan v. Defenders of Wildlife]{.underline}, 504 U.S. 555,
560 (1992) (quoting [Whitmore v. Arkansas]{.underline}, 495 U.S. 149,
155 (1990)). In addressing the issue of standing, a court must determine
whether a party has a sufficient personal stake in the outcome of an
otherwise justiciable controversy to obtain relief through a judicial
resolution of that controversy. [Sierra Club v. Morton]{.underline}, 405
U.S. 727, 731 (1972). Standing questions must be resolved according to a
two-part inquiry that considers not only Article III constitutional
limitations but also prudential limitations. [Gladstone Realtors v.
Village of Bellwood]{.underline}, 441 U.S. 91, 99 (1979). A litigant
must pass both constitutional and prudential muster to have standing to
sue. [Family & Children\'s Center, Inc. v. School City of
Mishawaka]{.underline}, 13 F.3d 1052, 1058 (7th Cir. 1994), [cert.
denied]{.underline}, 513 U.S. 961 (1994).

**1. Article III Standing**

To establish standing under Article III, the litigants must establish an
\"irreducible constitutional minimum of standing." [Lujan]{.underline},
504 U.S. at 560 (1992); [Plotkin v. Ryan]{.underline}, 239 F.3d 882, 884
fn. 5 (7^th^ Cir. Feb. 6, 2001). This "irreducible constitutional
minimum of standing" contains three elements: (1) plaintiffs suffered
actual or threatened injury; (2) the condition complained of caused the
injury or threatened injury, and (3) the requested relief redressed the
alleged injury. [Lujan,]{.underline} 540 U.S. at 560-61. These three
basic requirements are referred to as injury-in-fact,
causation/traceability, and redressability. [Plotkin]{.underline}, 239
F.3d at 884. When examining whether plaintiffs suffered actual or
threatened injury, the inquiry focuses on whether the injury-in-fact is
(1) "concrete and particularized," and (2) actual or imminent, not
'conjectural' or 'hypothetical.'" [Lujan]{.underline} 540 U.S. at 560.

An alleged violation of the ADA is an injury sufficient to give rise to
an Article III case or controversy. [Aikins v. St. Helena
Hosp.]{.underline}, 843 F.Supp. 1329, 1334 (N.D.Cal.1994). This
identified injury must be personal to the plaintiffs, and not
theoretical or speculative. [See]{.underline} [Hoepfl v.
Barlow]{.underline}, 906 F.Supp. 317, 322 (E.D. Va. 1995) (\"\[T\]he
right created and at issue here is the right to be free from
discrimination in the enjoyment of public accommodations and
services\"); [see]{.underline} [also]{.underline} [Doe v. National Board
of Medical Examiners]{.underline}, 199 F.3d 146, 153 (3d Cir. 1999)
(plaintiff\'s fear of discrimination due to identification of his
disability was a concrete injury).

** 2. Prudential Limitations**

In addition to Article III's "minimum of standing," the Supreme Court
has recognized prudential limitations on the "class of persons who may
invoke the courts\' decisional and remedial powers." [Warth v.
Seldin]{.underline}, 422 U.S. 490, 499 (1975). For instance, a party
\"must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties."
[Id.]{.underline}

Prudential limitations do not apply, however, when Congress, by
legislation, has expanded standing to the full extent permitted by
Article III, thereby overriding prudential standing limitations and
authorizing all persons who satisfy the Constitution's standing
requirements to bring a particular action in federal court.
[Warth]{.underline}, 422 U.S. at 501 ("Congress may grant an express
right of action to persons who otherwise would be barred by prudential
standing rules."); [Gladstone, Realtors v. Village of
Bellwood]{.underline}, 441 U.S. 91, 100 (1979) ("Congress may, by
legislation, expand standing to the full extent permitted by Art. III,
thus permitting litigation by one who otherwise would be barred by
prudential standing rules.").

** B. Individual Standing To Sue Under The ADA And The Rehabilitation
Act**

Defendants argue that the individual Plaintiffs do not have standing
because none of them has suffered an injury in fact. Motion for Summary
Judgment, at 21.

As explained [supra]{.underline}, to establish standing under Article
III, the individual Plaintiffs must establish the three prongs of the
[Lujan]{.underline} test by showing that (1) they suffered actual or
threatened injury; (2) the condition complained of caused the injury or
threatened injury, and (3) the requested relief redressed the alleged
injury. [Lujan]{.underline}, 504 U.S. at 560-61; [Doe v. County of
Montgomery, Illinois]{.underline}, 41 F.3d 1156, 1159 (7th Cir. 1994).
When examining whether the individual Plaintiffs suffered actual or
threatened injury, the inquiry should focus on whether the
injury-in-fact is (1) "concrete and particularized," and (2) actual or
imminent, not 'conjectural' or 'hypothetical.'" [Lujan]{.underline} at
560.

When individual Plaintiffs are themselves the objects of the action,
\"there is ordinarily little question that the action or inaction \[of
the defendant\] has caused \[them\] injury, and that a judgment
preventing or requiring the action will redress it.\"
[Lujan]{.underline}, 504 U.S. at 560-61.

Therefore, the individual Plaintiffs in this case can survive summary
judgment if they produce evidence which, when viewed in the light most
favorable to them, suggests that they were denied opportunities to ride
the CTA's bus and rail systems. More specifically, the Plaintiffs can
survive summary judgment if they can establish that a reasonable jury
could find for them with regard to facts such as those alleged in the
Complaint: that they were repeatedly confronted by malfunctioning or
non-functioning mechanical lifts; by bus drivers who did not know how to
operate the lifts; by bus drivers who did not know to call out stops; by
bus drivers who did not stop to pick up riders with disabilities; by
train station agents who were inadequately trained in the use of the
"gap-filler;" by inoperable elevators at train stations; and by train
personnel who did not know to call out the stops. In other words, the
Plaintiffs will survive summary judgment if there is a genuine issue
about whether CTA provided these individuals with accessible
transportation.

** C. A Public Interest Group's Representational Standing to Sue Under
The ADA and the Rehabilitation Act**

The Defendant argues that Access Living lacks representational standing
to bring its claims under the ADA and the Rehabilitation Act, since the
evidence identified by Access Living during discovery makes clear that
Access Living cannot establish this allegation "without requiring the
participation of individual association members." Defendants' Motion for
Summary Judgment at 20. Defendants' arguments, however, find no support
in the prevailing case law.

Generally, an injured party must assert her own legal rights and
interests and cannot rest her claim to relief on the legal rights or
interests of third parties. [Warth v. Seldin]{.underline}, 422 U.S. 490,
499 (1975); [Retired Chicago Police Ass\'n v. City of
Chicago]{.underline}, 7 F.3d 584, 600 (7th Cir.1993); [National
Organization for Women, Inc., v. Scheidler]{.underline}, 897 F. Supp.
1047, 1067 (N.D. Ill. 1995). However, in certain circumstances, an
association may have standing solely as the representative of the people
who it serves. [Warth v. Seldin]{.underline}, 422 U.S. at 511; [Retired
Chicago Police Ass\'n v. City of Chicago]{.underline}, 7 F.3d at 600.
The landmark case for associational, or organizational, standing is
[Hunt v. Washington Apple Advertising Comm\'n]{.underline}, 432 U.S. 333
(1977). The [Hunt]{.underline} test is as follows:

\[A\]n association has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization\'s purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual members in the
lawsuit.

[Hunt]{.underline}, 432 U.S. at 343. The [Hunt]{.underline} test was
reaffirmed in [International Union, United Automobile, Aerospace, and
Agricultural Implement Workers of America v. Brock]{.underline}, 477
U.S. 274 (1986), where the Court specifically noted that very often an
organization will present an especially efficient vehicle for litigation
from the perspective of both the litigants and the judicial system.
[Brock]{.underline}, 477 U.S. at 289. The Court continued, \"\[a\]
preexisting organization can often draw upon a preexisting reservoir of
experience, research, and capital. These resources \... can often
sharpen the presentation of issues appreciably -- one of the primary
concerns of the doctrine of standing.\" [Retired Chicago Police
Ass\'n]{.underline}, 7 F.3d at 600 (citing [Brock]{.underline});
[see]{.underline} [Joint Anti-Fascist Refugee Comm. v.
McGrath]{.underline}, 341 U.S. 123, 187 (1951) (Jackson, J.,
concurring).

The first prong of the [Hunt]{.underline} test is whether those whom
Access Living represents would otherwise have standing to sue in their
own right. This issue is addressed above, in the discussion of an
individual's standing to sue.

The second prong of the [Hunt]{.underline} test, whether the interests
Access Living seeks to protect are germane to its purposes, has clearly
been established by Access Living. Access Living is an organization that
represents, and provides services to, people with disabilities. Its
mission statement shows that its primary purpose is to protect
individuals with disabilities:

Access Living fosters the dignity, pride, and self-esteem of people with
disabilities, and enhances the options available to them so that they
may choose and maintain individualized and satisfying lifestyles \...
Access Living recognizes the innate rights, abilities, needs and
diversity of people with disabilities, works toward their integration
into community life, and serves as an agent of social change.

Access Living Mission Stmnt., [at]{.underline}
http://www.state.il.us/dhr/housenet/disab/access/mission.html.

The third prong of the [Hunt]{.underline} test is whether the claim
asserted or the relief requested requires the participation of
individuals who the group serves in the lawsuit. In examining this
prong, the Seventh Circuit has stated that it could "discern no
indication in [Warth]{.underline}, [Hunt]{.underline}, or
[Brock]{.underline} that the Supreme Court intended to limit
representational standing to cases in which it would not be necessary to
take any evidence from individual members of an association." [Retired
Chicago Police Ass'n v. City of Chicago]{.underline}, 7 F.3d 584, 601-02
(7^th^ Cir. 1993). The Court then stated that the third prong of the
[Hunt]{.underline} test is "more plausibly read as dealing with
situations in which it is necessary to establish 'individualized proof'
\... for litigants not before the court in order to support the cause of
action." [Id.]{.underline} at 602, [quoting Hunt]{.underline}, 432 U.S.
at 344. The Court then noted that:

\[W\]hile the third prong of the [Hunt]{.underline} test requires that
we conclude that "neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit,"
[Hunt]{.underline}, 432 U.S. at 343, associational standing does depend
\"in substantial measure on the nature of the relief sought.\"
[Warth]{.underline}, 422 U.S. at 515. Declaratory, injunctive, or other
prospective relief will usually inure to the benefit of the members
actually injured and thus individualized proof of damages is often
unnecessary. [Id.]{.underline}

[Retired Chicago Police Ass'n]{.underline}, at 602-603. The Court then
stated that recovery would not require that every member of the
plaintiff association give evidence. [Id.]{.underline} at 603. Rather,
as stated by the Court, the plaintiffs would need to establish, using
circumstantial evidence, that the violation occurred, and that this
evidence "might be supplied by the evidentiary submissions of some of
the members." The court then concluded that each of the plaintiff's
members' presence as a party would not be required. [Id.]{.underline} at
603.

As in [Retired Chicago Police Ass'n]{.underline}, Access Living does not
need to have each of its clients participate in this action. Any
declaratory, injunctive, or other prospective relief against Defendant
would inure to the benefit of all individuals with disabilities,
including the clients of Access Living, when these individuals use the
Defendant's transit services. Under [Hunt]{.underline} and [Retired
Chicago Police Ass'n]{.underline}, the relief being sought by Access
Living and the individual Plaintiffs requires only that Plaintiffs
establish, using circumstantial evidence by some of the people who it
serves, that the violation occurred. If the court finds that Access
Living has established each prong of the [Hunt]{.underline} test, then
Access Living has representational standing under the ADA and the
Rehabilitation Act to bring this action on behalf of its clients with
disabilities.

** D A Public Interest Group's Standing to Sue In Its Own Right Under
The ADA and the Rehabilitation Act**

** 1. Article III Standing**

Defendant argues that summary judgment should be granted because Access
Living did not allege specific facts that, if taken as being true,
demonstrate that it has suffered a concrete and demonstrable injury as
required under [Lujan]{.underline}. Motion for Summary Judgment at 18.

An association or organization may gain standing by suing based on
injuries to itself. [See]{.underline} [Havens Realty Corp. v.
Coleman]{.underline}, 455 U.S. 363, 379 (1982). [See, e.g.]{.underline},
[Oak Ridge Care Center v. Racine County, Wis.]{.underline}, 896 F. Supp.
867, 871 (E.D. Wis. 1995) (elder care facility had Article III standing
under ADA).

Access Living can survive summary judgment on this point if it produces
evidence showing that it has been frustrated from achieving its purposes
and goals because CTA is making it difficult for Access Living's
employees, board members, and clients to participate in community life
or reach Access Living's offices, and for Access Living's employees to
attend meetings in and around Chicago and to reach people with
disabilities in the community. Such evidence would satisfy
[Lujan]{.underline}'s requirement that Access Living has suffered an
injury-in-fact traceable to CTA's conduct that a favorable decision by
this Court would remedy.

** 2. Prudential Limits**

Defendant argues that Access Living does not have standing under the ADA
because it is not an "individual" as required for standing. Motion for
Summary Judgment at 17. As explained [supra]{.underline}, generally, a
party "must assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third parties."
[Warth v. Seldin]{.underline}, 422 U.S. 490, 499 (1975). However, as
long as constitutional requirements are met, Congress may grant standing
to organizations to seek relief on the basis of the legal rights and
interests of others. [Warth]{.underline}, 422 U.S. at 501.

Congress granted broad enforcement powers under title II of the ADA,
which prohibits discrimination on the basis of disability in general
terms, 42 U.S.C. § 12132, and extends relief to \"any *person* alleging
discrimination on the basis of disability.\" 42 U.S.C. § 12133 (emphasis
added). Congress similarly granted broad enforcement powers under the
Rehabilitation Act, which extends its remedies to \"any person
aggrieved\" by the discrimination of a person on the basis of his or her
disability. 29 U.S.C. § 794a(a)(2). [See]{.underline} [Innovative Health
Systems, Inc., v. City of White Plains]{.underline}, 117 F.3d 37, 47 (2d
Cir. 1997). That \"person\" need not be an individual with a disability,
as Defendants maintain, but may be an entity or anyone who is injured by
a covered entity\'s discrimination.

Of those courts to address the specific issue of title II's protection
of individuals and entities subjected to discrimination on the basis of
disability, most courts have determined that an institution has standing
to sue under title II. [See]{.underline} [Innovative Health
Systems]{.underline}, 117 F.3d at 44-45; [Oak Ridge Care Center v.
Racine County, Wis.]{.underline}, 896 F. Supp. 867, 872-73 (E.D.Wis.
1995); [Tugg v. Towey]{.underline}, 864 F. Supp. 1201, 1205 (S.D. Fla.
1994); [Concerned Parents to Save Dreher Park Center v. City of West
Palm Beach]{.underline}, 846 F. Supp. 986, 990 (S.D. Fla. 1994). [See
also]{.underline} [Havens Realty Corp. v. Coleman]{.underline}, 455 U.S.
363, 379 (1982) (fair housing organization had standing to sue in its
own right under Fair Housing Act, a civil rights statute closely
analogous to the ADA); [Growth Horizons, Inc. v. Delaware County,
Pa.]{.underline}, 983 F.2d 1277, 1282 (3d Cir. 1993) (corporation that
provided community living arrangements to mentally ill individuals had
standing to sue under Fair Housing Act); [Raver v. Capitol Area
Transit]{.underline}, 887 F. Supp. 96, 98 (M.D. Pa. 1995) (nonprofit
corporation that seeks to assure equal access to mass transportation
facilities for persons with disabilities has standing to sue under ADA).

Most courts have similarly determined that individuals and entities who
are injured by discrimination on the basis of disability have standing
under Section 504 even though they are not, themselves, individuals with
disabilities. In [Sullivan v. City of Pittsburgh]{.underline}, 811 F.2d
171 (3d Cir. 1987), for example, a non-profit corporation that operated
treatment centers for alcoholics sued under section 504 of the
Rehabilitation Act for discrimination in zoning and funding decisions by
the defendant city. The defendant argued that, because the corporation
was not a qualified individual with a disability, the city\'s
discrimination against the corporation was not actionable. The court
disagreed, finding that:

the clear intent of Congress in enacting § 504 was to make unlawful
[direct or indirect]{.underline} discrimination against any handicapped
individual who would benefit from a federally-funded program or
activity. . . . Therefore, if the City denied . . . funds to \[the
plaintiff corporation\] because the funds would be used for handicapped
individuals, it violated § 504.

[Id]{.underline}. at 182 n. 12 (citations omitted) (emphasis added).

In [Greater Los Angeles Council on Deafness, Inc. v. Zolin]{.underline},
812 F.2d 1103 (9th Cir. 1987), an organization paid for a sign language
interpreter for a deaf juror and was denied reimbursement by the county.
The organization sued under section 504. The defendants challenged the
organization\'s standing, claiming the organization was not a member of
the class benefitted by the statute. The court disagreed, finding that
organizations of or for people with disabilities have standing to sue
under section 504 for injunctive relief and to recover expenses made
necessary by a defendant\'s discrimination. [Id]{.underline}. at 1115.
[See]{.underline} [also]{.underline} [Williams v. United
States]{.underline}, 704 F.2d 1162, 1163 (9th Cir. 1983) (organization
whose purposes include improving the quality of life of individuals with
disabilities has standing to sue to require Federal agencies to perform
their obligations under section 504); [United Handicapped Fed\'n v.
Andre]{.underline}, 558 F.2d 413 (8th Cir. 1977) (associations of
individuals with disabilities have standing); [Nodleman v. Aero
Mexico]{.underline}, 528 F. Supp. 475 (C.D. Cal. 1981); [Independent
Housing Servs. v. Fillmore Ctr. Assocs.]{.underline}, 840 F. Supp. 1328
(N.D. Cal. 1993).

The only case cited by Defendants in support of their argument that
Access Living lacks standing to sue under the ADA and the Rehabilitation
Act is[ Kessler Inst. for Rehabilitation, Inc. v. Mayor and Council of
Essex Fells]{.underline}, 876 F. Supp. 641 (D.N.J. 1995). Defendants'
Motion for Summary Judgment at 18. However, this Court will find
[Kessler]{.underline} of little help because the court in that case did
not address the provisions of the Americans with Disabilities Act, the
clear language of the regulation interpreting title II, or the
legislative history of the statute. [Liberty Resources v. Southeastern
Pennsylvania Transportation Authority]{.underline}, 2001 WL 15960, \*5
at n16 (E.D.Pa. Jan. 5, 2001)("\[t\]he reasoning in Kessler is flawed"
for several reasons).

[Innovative Health Systems]{.underline}, [Oak Ridge]{.underline} and
[Tugg]{.underline}, on the other hand, are well-reasoned and supported
by the plain language, legislative history, and agency interpretation of
the ADA.^3^[^3] In [Innovative Health Sys.]{.underline}, an outpatient
drug and alcohol rehabilitation treatment center and a number of its
clients sued the City of White Plains and various officials under the
ADA and Rehabilitation Act after the treatment center's application for
a building permit was denied. There, as here, defendants challenged
plaintiffs' standing to sue under both statutes. The Second Circuit
rejected defendants' arguments, noting: "That IHS is not granted legal
rights under \[the ADA or Rehabilitation Act\], . . . 'hardly determines
whether \[it\] may sue to enforce the . . . rights of others.'"
[Innovative Health Sys.]{.underline}, 117 F.3d at 47 (quoting [Gladstone
Realtors v. Village of Bellwood]{.underline}, 441 U.S. 91, 103 n.9
(1979)). "Rather," the court continued, "we must look to whether the
statutes 'grant\[\] persons in the plaintiff's position a right to
judicial relief." [Id.]{.underline} (quoting [Warth v.
Seldin]{.underline}, 422 U.S. 490, 499 (1975)). The Second Circuit
concluded:

Looking to the enforcement provisions of each statute, we agree with the
district court that IHS has standing under both Title II of the ADA and
the Rehabilitation Act. Title II's enforcement provisions extends relief
to "any person alleging discrimination on the basis of disability." 42
U.S.C. § 12133 (1994). Similarly, the Rehabilitation Act extends its
remedies to "any person aggrieved" by the discrimination of a person on
the basis of his or her disability." 29 U.S.C. § 794a(a)(2). As the
district court noted, the use of such broad language in the enforcement
provisions of the statute "evinces a congressional intention to define
standing to bring a private action under 504 \[and Title II\] as broadly
as is permitted by Article III of the Constitution." [See]{.underline}
[Innovative Health Sys., Inc.]{.underline}, 931 F. Supp. at 237 (quoting
[Nodleman v. Aero Mexico]{.underline}, 528 F. Supp. 475, 485 (C.D. Cal.
1981)(citing [Trafficante v. Metropolitan Life Ins. Co.]{.underline},
409 U.S. 205, 209, 93 S. Ct. 364, 366-67, 34 L. Ed. 2d 415 (1972))).

[Innovative Health Sys.]{.underline}, 117 F.3d at 47.

Similarly, in [Oak Ridge]{.underline}, the court found that Oak Ridge
Care Center, an elder care facility that challenged defendant\'s denial
of its application for a conditional use permit under the ADA and the
Fair Housing Act, had Article III standing because, as a result of
defendant\'s discriminatory action, it lost a sale of property and had
to continue to make mortgage payments. [Oak Ridge]{.underline}, 896 F.
Supp. at 871. The court refused to follow [Kessler]{.underline} because
\"\[t\]he [Kessler]{.underline} court failed to consider the regulations
implementing the ADA.\" [Id.]{.underline} at 872. The court found that
ADA standing for an institution was contemplated by the Appendix to 28
C.F.R. § 35.130(g), and the plain language of the regulations supported
its finding. [Id]{.underline}.

Finally, in [Tugg]{.underline}, deaf individuals and their family
members sued for violations of title II of the ADA. The defendants in
that case, like the defendants here, argued that the non-disabled
individuals did not have standing to sue in their own right because they
were not individuals with disabilities. The court, relying on 28 C.F.R.
§ 35.130(g) and the preamble thereto, found that title II gave \"broad
protection to anyone associated with an individual with a disability.\"
[Id.]{.underline} at 1208. Consequently, the court found that the
non-disabled individuals had standing to assert their own rights under
the ADA. [See also]{.underline} [Comer v. Cisneros]{.underline}, 37 F.3d
775, 789 (2d Cir. 1994) (under Fair Housing Act court need only examine
constitutional minima of injury); [Epicenter of Steubenville, Inc. v.
City of Steubenville]{.underline}, 924 F. Supp. 845, 849-50 (S.D. Ohio
1996) (corporation had standing to challenge under the Fair Housing Act
City's zoning ordinance that prohibited it from obtaining permit to
operate an adult care facility); [Finley v. Giacobbe]{.underline}, 827
F. Supp. 215, 219-20 (S.D.N.Y. 1993).

The foregoing authorities firmly establish that a public interest group
has standing to sue in its own right and on behalf of its current and
future clients.

**IV. The Need to Prove Intentional Discrimination Under the ADA and the
Rehabilitation Act.**

CTA contends that the plaintiffs have failed to establish a prima facie
case of intentional discrimination, which it argues is required under
title II of the ADA. Defendant's Motion for Summary Judgment at 22-53.
However, proof of intentional discrimination is not necessary to
establish a prima facie case; instead, it is necessary only to justify a
court's award of compensatory damages. Moreover, to prove intentional
discrimination the plaintiffs do not need to show a discriminatory
animus on the part of CTA officials, but need to establish only a
"deliberate indifference" to the complaints about accessibility
problems.

To make out a prima facie case under title II, a plaintiff does not have
to prove intentional discrimination. In [Washington v. Indiana High
School Athletic Assn.]{.underline}, 181 F.3d 840, 846 (7^th^ Cir. 1999),
the Seventh Circuit held, "We cannot accept the suggestion that
liability under Title II of the Discrimination Act must be premised on
an intent to discriminate on the basis of disability." The Court of
Appeals noted that several other circuit courts of appeal have also held
that a plaintiff is not required to present proof of intentional
discrimination to establish a prima facie case under title II or Section
504 of the Rehabilitation Act. [Id.]{.underline} [See]{.underline}
[McPherson v. Michigan High School Athletic Assn.]{.underline}, 119 F.3d
453, 460 (6^th^ Cir. 1997); [Crowder v. Kitigawa]{.underline}, 81 F.3d
1480, 1483-84 (9^th^ Cir. 1996); [Norcross v. Sneed]{.underline}, 755
F.2d 113, 117 n. 4 (8^th^ Cir. 1985); [Pushkin v. Regents of the Univ.
of Colorado]{.underline}, 658 F.2d 1372, 1385 (10^th^ Cir. 1981);
[Prewitt v. United States Postal Service]{.underline}, 662 F.2d 292, 306
(5^th^ Cir. 1981).

Evidence of intentional discrimination is only relevant in the context
of a claim for compensatory damages. [See]{.underline} [Guardians
Association v. Civil Service Commission of New York]{.underline}, 463
U.S. 582 (1983)(analyzing Title VI of the 1964 Civil Rights Act).^4^[^4]
[See also]{.underline} [Powers v. MJB Acquisition Corp.]{.underline},
184 F.3d 1147, 1153 (10^th^ Cir. 1999)(since intentional discrimination
is not an element of the plaintiff\'s prima facie case, the only
question is whether the plaintiff had to prove intentional
discrimination to receive an award of compensatory damages). [Ferguson
v. City of Phoenix]{.underline}, 157 F.3d 668 (9^th^ Cir. 1998), cited
in CTA's Motion for Summary Judgment, illustrates this point. The
district court in that case found that there was no proof of intentional
discrimination; while it granted injunctive relief, it did not award
compensatory damages. [Id.]{.underline} at 673. Similarly, in [Midgett
v. Tri-County Metropolitan Transportation District of
Oregon]{.underline}, 74 F. Supp. 2d 1008, 1018 (D.Or. 1999), also cited
in CTA's Motion, the district court first analyzed whether there was
sufficient proof for an injunction, and then took up the issue of
intentional discrimination to determine if compensatory damages were
appropriate.

It is premature at this stage for the court to rule on the appropriate
remedies and therefore it is premature to analyze the evidence of
intent. However, if intent is considered at this stage of the
proceedings, the Supreme Court has laid out the legal standard for
intentional discrimination in [Gebser v. Lago Vista Ind. School
Dist.]{.underline}, 524 U.S. 274 (1998). The Court held that a plaintiff
can establish intentional discrimination under Title IX through proof of
"deliberate indifference." In [Gebser]{.underline}, a high school
student brought suit against a school district, claiming that she had
been sexually harassed by a teacher. The Supreme Court ruled that the
school district was not liable for damages under Title IX for actions
about which it had no knowledge. The Court held that in cases that do
not involve the official policy of a recipient entity, damages would be
available only if "an official who at a minimum has authority to address
the alleged discrimination and to institute corrective measures on
recipients' behalf has actual knowledge of the discrimination in the
recipient's programs and fails adequately to respond." [Id.]{.underline}
at 290. The response, or lack thereof, must amount to "deliberate
indifference." [Id.]{.underline} That is, an official must make a
decision not to remedy the violation that has been brought to his or her
attention. [Id.]{.underline}

In [Chontos v. Rhea]{.underline}, 29 F.Supp. 2d 931 (N.D. Ind. 1998), a
federal district court applied "deliberate indifference" in a Title IX
case. It held that although a university took some corrective actions
when it first received complaints of sexual harassment by a professor,
including giving him a written warning and ordering him into counseling
with a psychiatrist, a reasonable jury could find that it was still
deliberately indifferent to the problem in part because it did not
adequately follow up on the problem. [Id.]{.underline} at 937. Moreover,
although the university had in place a written policy on sexual
harassment, a reasonable jury could find that what the university
actually did when it received complaints was more important than the
written policy. [Id]{.underline}. at 936-37.

The Fourth Circuit has held that a state licensing agency's failure to
make a reasonable accommodation for a test-taker could constitute
deliberate indifference. [Pandazides v. Virginia Board of
Education]{.underline}, 13 F.3d 823 (4^th^ Cir. 1994) (intentional
discrimination is not necessarily discriminatory animus, but may be
simple disparate treatment). The Second Circuit reached the same
conclusion in a similar case. [Bartlett v. New York State Board of Law
Examiners]{.underline}, 156 F.3d 321 (2d Cir. 1998), [judgment vacated
by]{.underline} 527 U.S. 1031 (1999). A district court in Maryland held
that the failure to provide a sign language interpreter could constitute
deliberate indifference, even where the omission was the result of
thoughtlessness and indifference rather than animus. [Proctor v. Prince
George's Hospital Center]{.underline}, 32 F. Supp. 2d 820, 828-29 (D.
Md. 1998).

The Ninth Circuit's analysis in [Ferguson]{.underline} reinforces these
points. The Ninth Circuit found that there was no deliberate
indifference in that case for several reasons. First, the number of
complaints received by the City of Phoenix's 9-1-1 center was quite low:
"We find nothing to suggest that the City received alleged numerous and
repeated complaints to which it did not respond. In fact, the evidence
was to the contrary." [Ferguson v. City of Phoenix]{.underline}, 157
F.3d at 675. Moreover, whenever the 9-1-1 center received a complaint,
the complaints were investigated and "a follow-up was always done."
[Id.]{.underline}^5^[^5]

Applying these legal standards to this case, the plaintiffs can survive
partial summary judgment if they produce evidence which, when viewed in
the light most favorable to the

Plaintiffs, suggests that CTA employees were aware that people with
disabilities were experiencing problems with accessibility. Moreover,
evidence such as the following will also be relevant: whether CTA
employees undertook a meaningful investigation of the complaints;
whether the people with disabilities who complained to CTA received a
timely response; whether CTA took substantial steps to correct the
problems raised in the complaints; whether CTA put in place procedures
to ensure that the problems would not be repeated in the future; and
whether CTA responded in a consistent way to the various complaints that
it received.

CTA also argues that "the discriminatory intent must be that of the
covered public entity, not its employees." Defendant's Motion for
Summary Judgment at 23. However, as explained above, the question for
this Court as it evaluates the evidence of intentional discrimination is
whether \"an official who at a minimum has authority to address the
alleged discrimination and to institute corrective measures \... has
actual knowledge of discrimination in the recipient\'s programs,\" and
responds with \"deliberate indifference.\" [Gebser v. Lago Vista Ind.
School Dist.]{.underline}, 524 U.S. at 290. The relevant question in
this case is not whether the people who took the allegedly unlawful
actions, or made the allegedly unlawful oversights, were bus drivers or
train engineers or employees in the administrative offices at CTA's
headquarters. The legal test is whether these employees and officials
had the authority to act on the problems that were reported to them.

The primary case CTA relies on, [Smith v. Metropolitan School District
Perry Township]{.underline}, 128 F.3d 1014 (7^th^ Cir. 1997), was
decided before the Supreme Court laid out the standard in
[Gebser]{.underline}. Moreover, the principle of that case is not at
broad as CTA suggests. The Seventh Circuit has explained that
[Smith]{.underline} stands for the proposition that "the school district
was not liable for the sexual harassment by one of its teachers because
there was no evidence that a school official knew of the alleged
harassment and failed to respond." [Mary M. v. North Lawrence
Communication School Corp.]{.underline}, 131 F.3d 1220, 1224 (7^th^ Cir.
1997). In other words, [Smith ]{.underline}is in harmony with
[Gebser]{.underline}.

CTA concludes its argument on this point by asserting, "Accordingly, in
order to establish a claim under the Rehabilitation Act or Title II for
compensatory damages, the Plaintiffs must show that the CTA itself
engaged in intentional discrimination." Motion for Summary Judgment at
24. This statement, of course, begs the question. This Court should
determine that the Defendants are responsible if CTA employees who had
some authority to correct the problems responded to complaints with
"deliberate indifference."

** V. The Availability of Injunctive Relief Under the ADA and the
Rehabilitation Act.**

CTA finally asserts that plaintiffs have not established that they are
entitled to injunctive relief: "The Plaintiffs here have clearly failed
to establish the type of strong record which would be required to
support the imposition of injunctive relief against a government
entity." Defendant's Motion for Summary Judgment at 58.

CTA attempts to convince this Court that an order for injunctive relief
against a state or local government entity is extraordinary in a case
under title II or Section 504. In fact, such orders are routine in cases
where a plaintiff establishes liability. Title II, Section 504, and
Title VI all provide the same "remedies, procedures, and rights."
[See]{.underline} 42 U.S.C. § 12133 (title II of the ADA), 29 U.S.C. §
794(a)(2)(Section 504) and 42 U.S.C. §§ 2000d [et]{.underline}
[seq.]{.underline} (Title VI). When it is proven that a state or local
government entity has violated of one of these federal civil rights
statutes, injunctive relief is regularly granted. [See,
e.g.,]{.underline} [Ferguson v. City of Phoenix]{.underline}, 157 F.3d
668 (9^th^ Cir. 1998)(the district court granted the plaintiff
injunctive relief because it found that the 9-1-1 system did not operate
properly);[ Galloway v. District of Columbia Superior
Court]{.underline}, 816 F. Supp. 12 (D.D.C. 1993)(court's policies with
regard to jurors with vision impairments enjoined); [Olmstead v.
L.C.]{.underline}, 1997 WL 148674 (N.D.Ga. 1997), [aff'd]{.underline}
138 F.3d 893 (11^th^ Cir. 1998), [aff'd]{.underline} 527 U.S. 581
(1999)(order directing state to revise its community-based treatment
policies).

CTA's argument on this point assumes that there is insufficient proof
that it has violated the statute; in other words, the argument is
premised on the Court finding that Access Living has not proved its
case. This argument therefore depends on facts that may still be in
dispute.

Moreover, CTA cites cases that are not helpful to the resolution of this
issue. [Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking,
Inc.]{.underline}, 176 F.3d 1004 (7^th^ Cir. 1999) deals with the
standards that courts impose for requests for [preliminary]{.underline}
injunctions. [Rizzo v. Goode]{.underline}, 423 U.S. 362 (1976), dealt
with a case where a federal court, through the court's inherent powers,
took direct control of a police department's internal processes. Here,
there is specific statutory authorization for an order of injunctive
relief. If Access Living can establish that CTA is in violation of the
ADA and Section 504, this Court can order any injunctive relief that is
consistent with those statutes and specifically targeted to resolve the
accessibility problems identified as being in violation of the statutes.

[CONCLUSION]{.underline}

For these reasons, the United States respectfully submits that the Court
should rule in favor of the Plaintiffs on the issues addressed above.

Respectfully submitted,

JOHN ASHCROFT

Attorney General of the United States

SCOTT R. LASSAR WILLIAM R. YEOMANS

U.S. Attorney Acting Assistant Attorney General

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

JOAN LASER JOHN L. WODATCH, Chief

Assistant U.S. Attorney L. IRENE BOWEN, Deputy Chief

Northern District of Illinois PHILIP L. BREEN,

219 S. Dearborn Street Special Legal Counsel

Fifth Floor

Chicago, Illinois 60604 DANIEL W. SUTHERLAND

\(312\) 353-1857 JOSH MENDELSOHN

Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 616-5540, (202) 307-9923

\(202\) 307-1197 (facsimile)

[^1]: ^1^ On March 1, 2001, CTA filed a Revised Motion for Summary
    Judgment. All references in this Memorandum of Law to CTA's Motion
    for Summary Judgment are references to the Revised Motion.

[^2]: ^2^ "Public entity" is defined, in relevant part, to include "any
    department, agency, special purpose district, or other
    instrumentality of a State or States or local government." 42 U.S.C.
    § 12131(1); 28 C.F.R. § 35.104.

[^3]: ^3^ In [Concerned Parents to Save Dreher Park Center v. City of
    West Palm Beach]{.underline}, 846 F. Supp. 986, 990 (S.D. Fla.
    1994), the court also recognized standing if one represents those
    subjected to discrimination based on a disability.

[^4]: ^4^ Title II of the ADA affords plaintiffs the "remedies,
    procedures, and rights"set forth in 29 U.S.C. § 794a (which governs
    the relief available under Section 504). 42 U.S.C. § 12133. In turn,
    29 U.S.C. § 794(a)(2) gives Section 504 plaintiffs the "remedies,
    procedures, and rights set forth in title VI of the Civil Rights Act
    of 1964," 42 U.S.C. § 2000d [et]{.underline} [seq.]{.underline}
    (Title VI). Therefore, the remedies available for violations of
    title II of the ADA are coextensive with those available under Title
    VI of the 1964 Civil Rights Act. [See]{.underline} [Parker v.
    Universidad de Puerto Rico]{.underline}, 225 F.3d 1, 4 (1st Cir.
    2000) (Title II adopts the remedial scheme of Title VI); [Dertz v.
    City of Chicago]{.underline}, 912 F.Supp. 319, 324 (N.D. Ill. 1995)
    (Title II adopts the remedies, rights, and procedures of Section
    504, which, in turn, adopt the procedural and remedial scheme of
    Title VI). Because Title IX of the Education Amendments of 1972, 20
    U.S.C. §§ 1681, [et seq]{.underline}., borrows the remedial scheme
    of Title VI of the Civil Rights Act of 1964, [see]{.underline}
    [e.g.]{.underline} [Cannon v. Univ. of Chicago]{.underline}, 441
    U.S. 677, 694-699 (1979) (Congress intended that Title IX would be
    interpreted and applied as Title VI as been), decisions regarding
    damages interpreting one of the statutes often are used by courts to
    apply to all four. [See]{.underline} [Alexander v.
    Choate]{.underline}, 469 U.S. 287, 293 (1985) (because Title IX,
    Section 504, and Title VI contain parallel language, the same
    analytic framework should generally apply in cases under all three
    statutes).

[^5]: ^5^ [Ferguson]{.underline}, [Pandazides]{.underline} and
    [Proctor]{.underline} were decided before [Gebser]{.underline}, and
    [Bartlett]{.underline} made no reference to [Gebser]{.underline}.
    However, all four employed the "deliberate indifference" standard
    and therefore remain relevant.