Harmful Error: How the Courts' Failure to Apply the Harmless Error Doctrine Has Obstructed the ADA's Standing Spectators Rule

Abstract

Title III of the Americans with Disabilities Act (ADA) explicitly applies to public accommodations, including sports arenas. What is significantly less clear, as evidenced by a split in courts' opinions, is the validity of the Department of Justice's (DOJ) standing spectator rule. This article will highlight a unique administrative law argument that would resolve the rift in favor of enforcing this important access rule. Standard 4.33.3 requires that individuals seated in wheelchairs in stadiums and other assembly areas have lines of sight comparable to those of the general public. Three years later, and without following the Administrative Procedure Act's (APA) notice and comment procedures, the DOJ issued a supplement to the Title III Technical Assistance Manual (TAM). In the TAM supplement, the DOJ stated explicitly that the lines of sight referred to in Standard 4.33.3 included lines of sight over standing spectators. Some courts have refused to enforce the standing spectator rule, finding it substantive rulemaking in violation of the APA's notice and comment requirements. Others concluded that the standing spectator rule was entitled to deference because it simply interpreted Standard 4.33.3, and therefore did not violate the APA. This article will discuss how every court to consider the standing spectator question has failed to complete the analysis. Rather than stop after answering the deference question, courts should have applied the harmless error rule. Had they done so, each would have reached the same conclusion: even if the TAM supplement were substantive rulemaking, the lack of notice and comment was harmless error; because the very same question was noticed and commented upon when the initial standard was issued, the DOJ did not have to repeat the process before issuing the TAM supplement.

Keywords: ADA, Disability, Standing Spectator, Wheelchair, APA, Procedure, Harmless Error, Notice and Comment, Line of Sight

JEL Classification: K19, K23, K39