Testing "testers" in a Supreme Court disability rights argument

The case is about accessibility information on hotel websites, but arguments focused on questions about whether the plaintiff could bring the lawsuit and whether the case is moot.

On Wednesday, the U.S. Supreme Court held oral arguments over whether it should decide a case about whether a “tester” who doesn’t plan to go to a certain hotel can bring an Americans with Disabilities Act lawsuit against that hotel alleging that it has violated the law.

Ultimately, the court appeared more likely than not to toss the case because it is moot — the case is “dead, dead, dead,” as Justice Elena Kagan said at one point — and not on the more complex question about whether the “tester” who brought the underlying lawsuit against the hotel had the legal right to do so.

For those whose idea of fun isn’t in-depth debates over what is referred to as justiciability, though, oral arguments in Acheson Hotels v. Laufer might have sounded at points like a verbal representation of an M.C. Escher drawing.

At base, though, the question the court granted the case to resolve — if the court reaches it — was of a similar transferred experience: How do we apply the standards established over time for examining discrimination faced in person when it has been experienced online? And, more fundamentally, do current laws and policies require that we do so at all?

As with the Escher drawing, though, figuring out the lines is difficult.

Under the Americans with Disabilities Act, places of public accommodation must make “reasonable modifications” to ensure equal access to “goods, services, facilities, privileges, advantages, or accommodations” for those with disabilities. Under a Justice Department rule — known as the Reservation Rule — that provision applies to reservation services offered by hotels. Specifically, as the Justice Department detailed in its brief before the Supreme Court:

[T]he Reservation Rule provides that, “with respect to reservations made by any means,” a place of lodging must “[i]dentify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets [their] accessibility needs.” 28 C.F.R. 36.302(e)(1)(ii).

Although the law allows private lawsuits to held enforce the law, it only provides for forward-looking relief — like an injunction — and attorneys’ fees associated with such cases. In other words, this is neither a substantial money-making prospect nor a type of lawsuit that many people are going to bring under normal circumstances because, as was detailed at arguments, people looking at websites before a vacation are going to have taken the trip before lawsuits would be resolved.

Enter “testers.” Deborah Laufer was a “tester” who looked at websites and brought lawsuits under the ADA when they failed to include that information. She was not going to the website because of a plan to stay at the hotel. This is what “testers” do. This is, they argue, “crucial to fulfilling the ADA’s goal” of equal access in this area for people with disabilities.

The standing question

Acheson Hotels was one of the businesses Laufer sued, and they argue that Laufer lacks standing to bring her case. Standing, essentially, asks whether a party has a right to be in court bringing this case. It’s not a question of whether they win or lose, but rather whether they — in federal court terms — can show they have an actual injury that likely would be addressed if they were to win their case.

This is where we get to the physical v. internet question.

Adam Unikowsky, from Jenner & Block, argued Wednesday for the hotel company for the most narrow standing. While he didn’t rule out “tester” cases entirely in word, his proposed standing test for such cases essentially would rule them out most of the time. He remained focused on the physical hotel, arguing that standing must be based on a person seeking to go to a hotel.

“I think it's got to be concrete plans,” he told Justice Neil Gorsuch on Wednesday, arguing later that even looking for accessibility information on hotel websites in three cities where a person is considering vacationing should not be enough to establish standing.

This is a striking — and far-reaching — argument that essentially would have the internet not “count” under the Reservation Rule unless, essentially, a connection to the physical hotel is claimed.

As Kesli Corkran put it in her arguments for Laufer, “They are attempting to upend, I think, how this Court has always defined discriminatory injury, which is the injury is in the dignitary harm. You don't have to show some sort of downstream consequence.”

She argued for Laufer that the correct framing is to see that the reservation website itself is the service covered by the rule. The dignitary or stigmatic injury that a person with a disability faces from visiting a hotel website that lacks such accessibility information, she continued, is sufficient to create standing for, among others, a tester like Laufer. As she put it Wednesday:

Erica Ross, assistant to the solicitor general, argued for the United States in agreement with Laufer that the website itself is a service and that, therefore, violations of the reservation rule can create standing. She also argued that “testers” can have standing, but that that standing should be limited to those seeking to use the service. DOJ’s argument is that an informational injury is created in such an instance — but only where an individual is seeking to use the reservation system.

In this instance, then, the Justice Department was identified as “supporting neither party.” DOJ supports a website-alone standing rule, but, with the added use requirement, also supports Acheson Hotels ultimate conclusion that Laufer would lack standing here.

Justice Neil Gorsuch, in his first question to Unikowsky, highlighted a further problem — or at least consideration — at issue, asking, ”With respect to standing, would it be sufficient if a plaintiff were to allege in her complaint that she does intend to visit the hotel, period?” Unikowsky said yes, and with it, the question of what the various proposed tests would truly do — whether they would actually limit cases — was added into the mix.

After all of that, and though some limits seemed likely if the court resolves the case on standing grounds, the court was left with no clear answer — and definitely no clear majority — on where the proper test is found between the varying arguments.

None of that, moreover, goes to the actual merits of the case: Whether the website violated the Reservation Rule and ADA. And Wednesday’s arguments didn’t get there, for the most part.¹

The mootness question

Instead, much of the argument went further in the other direction, asking whether the court should even get to the standing question.

Why is that?

In addition to standing questions in this case, there are mootness questions. If standing is the front end question of whether the party has a legal right to be in front of the court, mootness is a back-end question of whether there is any issue left to be resolved by the court.

And here, as Justice Elena Kagan made clear, the case is moot, telling Unikowsky, “[T]he hotel is now owned by somebody else, the hotel is in compliance in terms of its own website, and, you know, most importantly, the plaintiff has dropped this case.”

Although Acheson Hotels doesn’t argue that the case is not moot, Unikowsky nonetheless argued that the court should resolve the case by addressing standing — and tossing Laufer’s case on those grounds — to stop this type of “tester” litigation. Specifically, he questioned Laufer’s move dismissing the case as a “strategy” to avoid an “adverse precedent.”

That aside, Kagan countered later, “it still feels a bit unjudicial“ to handle the case as Unikowsky asked the court to do.

“I take the point that each of these [standing and mootness] is a jurisdictional issue and that there's nothing jurisdictionally precluding us [from deciding the standing question], that this is a matter of prudence. But, when you look at a case that's dead as a doornail several times over,” she said, reiterating the many changes to the parties and case, “this is like, dead, dead, dead in all the ways that something can be dead.“

Kagan was by no means alone. In fact, the first question of the morning came from Justice Clarence Thomas, asking Unikowsky, “Respondent says that she has withdrawn her suit. So why should we decide this? It seems as though it’s finished.“

Justices Sonia Sotomayor and Ketanji Brown Jackson seemed to agree — although Jackson did spend time talking through the distinctions between Laufer’s case and other, earlier civil rights “tester” cases, including discriminatory lunch counter policy challenges and the 1982 Havens Realty v. Coleman decision upholding “tester” standing under the Fair Housing Act.

Not everyone was on board, though. Based on the timing of Laufer dismissing her case below and the questions raised about it by Unikowsky, Chief Justice John Roberts expressed repeated concerns about whether resolving this case on mootness grounds — and not addressing the standing question — would be encouraging plaintiffs “to manipulate the jurisdiction of this Court.”

Corkran did attempt to answer that concern, telling Roberts, “I don't think that this is one of those cases.” Instead, she said, “there was this unexpected development” regarding a disciplinary order against her lawyer in another case “that was deeply upsetting to her” and led her to stop bringing these cases.

It was not clear whether that convinced Roberts, but at the end of the arguments, there was no one — none of the nine justices or three lawyers — arguing that the case isn’t moot.

The lawyers and the justices, however, differed in several ways on whether there was standing, what the test should be to decide standing, how the various tests advanced by the parties differ in form and results, and whether a more restrictive test would even narrow what litigation could be brought.

For all of those reasons, while a majority could reach the standing question, it seems more likely that the court will put off the line-drawing for another day — if another case even raises the issues in this way — by declaring this case moot.

1. At one point, Justice Sam Alito suggested that the difference between the positions of Acheson Hotels and the United States was, in fact, a merits question of how “Title III [of the ADA] and the Reservation Rule are properly interpreted.” Ross acknowledged that “the analyses sort of overlap” between standing and the merits on that front, but that this came to the court on the standing question.