Blind gamer sues Sony demanding ADA accommodation

by Walter Olson on November 9, 2009

Alexander Stern has sued Sony Online Entertainment and various affiliated entities involved in online videogaming, saying the company “is violating the Americans with Disabilities Act by failing to implement features to make its games accessible to visually impaired gamers.” [Gamespot, Kotaku, The Register via Siouxsie Law]

{ 39 comments }

1 Jim Collins 11.09.09 at 2:02 pm

When is the lawsuit against the Federal Government and every State in the US going to be filed because they violate the ADA for not accomodating blind drivers?

2 Ed 11.09.09 at 3:21 pm

can you sue the radio stations if you are deaf?

3 A.W. 11.09.09 at 4:43 pm

Here we go with a familiar routine on this site: the knee-jerk ridiculous suit, or so they say.

Let’s start with something basic, here, folks. Visually impaired doesn’t necessarily mean blind. So the deaf person suing a radio station metaphor doesn’t work, exactly.

Aren’t you at all curious to find out what he wants, or how bad his disability is? Maybe in fact he would be able to enjoy the games with just a few little adjustments. One article suggested that all he really needed was them to allow him to buy modifications to help himself out. Now if all he is asking for is the chance to mod the program to allow him to play, well, its not so obviously ridiculous any more, now is it? And that is not to say that Sony has no comeback, but now we are past the stage of saying it is facially ridiculous, and recognizing the need for a discussion.

But the attitude seems to be to dismiss out of hand the idea that any “visually impaired” person could play any kind of video game. When you think of the diversity of games and handicaps, that seems a little silly in and of itself, you can only say that if you don’t know much about games and/or visual impairments.

But there is one serious problem. as memory serves, public accommodations are covered by the ADA and so are employers. But in what sense is Sony a public accommodation? I suppose the law could be stretched to say a server is a public accommodation, but its not a slam dunk. So I would wonder about that.

But aside from that, I don’t think this case should be held up for ridicule.

4 ECM 11.09.09 at 5:38 pm

No, it’s not ridiculous of him to ask for it–it’s ridiculous of him to SUE for it especially when the ADA has no standing in such a case.

5 James 11.09.09 at 6:40 pm

It seems to me that being blind or visually impaired should generally automatically disqualify one from being allowed to complain about having a hard time participating in an activity that is primarily undertaken using TV screens.

I’m not sure what he expects Sony to do about it anyways.

6 Dr. T 11.09.09 at 6:59 pm

Mother Nature was sued today in federal court for violating the ADA. “She has made no accomodations for the blind, the deaf, or the physically handicapped,” said the lawyer in this class action suit. “At the very least she could put braille on the undersides of leaves,” said a blind fan of Frank Herbert’s Dune.

7 David Schwartz 11.09.09 at 7:16 pm

AW: Suing someone because their product doesn’t suit your needs is outright ridiculous. Anyone who does that can and should be held up to ridicule. If it doesn’t work for you, don’t buy it, buy something else. But to try to use the law to force a company to offer what you need is bizarre and outrageous.

8 Todd Rogers 11.09.09 at 9:48 pm

Blind leading the stupid or the stupid leading the blind?

9 A.W. 11.10.09 at 1:38 pm

James

> It seems to me that being blind or visually impaired should generally automatically disqualify one from being allowed to complain about having a hard time participating in an activity that is primarily undertaken using TV screens.

Even if all he is asking for is to be able to modify the program?

> I’m not sure what he expects Sony to do about it anyways.

Well, indeed, none of the reporting has discussed his demands. Which I would say is a very important element in evaluating the case.

David

> Suing someone because their product doesn’t suit your needs is outright ridiculous.

Ah, so next I suppose you will say a deaf person shouldn’t expect any captioning on any of his programs.

Or that a woman shouldn’t expect women’s restrooms.

Or a wheelchair bound man should not expect wheelchair ramps.

And if the makers of the SAT only want to deliver their tests on a Saturday, jews are sol.

Such an inclusive world you are imagining there.

10 Jim Collins 11.10.09 at 2:13 pm

A.W.
Compare apples to apples here not apples to bananas, grapes, oranges etc.

ADA is being used for what is basically legalized extortion. Notice that this suit is only against Sony, not all manufacturers of VIDEO gaming equipment. Why isn’t against television manufacturers, DVD manufacturers, computer manufacturere and even VCR manufacturers. Let’s not forget NBC, ABC, CBS, hell I could go on for ever. The lawsuit is BS plain and simple. I’m sorry the guy has a vision impairment and can’t do everything that he wants to do. He got delt a bad hand, he just has to deal with it. ADA was intended for “reasonable accomodations” and I happen to agree with that intent. The problem is that some people and their lawyers have perverted the meaning of “reasonable” just to line their pocketbooks. It is time that ADA gets overhauled and these lawyers held accountable for what are basically bullshit lawsuits.

11 A.W. 11.10.09 at 2:42 pm

> ADA is being used for what is basically legalized extortion. Notice that this suit is only against Sony, not all manufacturers of VIDEO gaming equipment. Why isn’t against television manufacturers, DVD manufacturers, computer manufacturere and even VCR manufacturers.

So… you’re upset he isn’t suing enough people? Or are you afraid sony is too small to defend itself?

And bluntly this post and indeed all of the articles linked to by this post really are so scant on information one can’t conclude whether he had justification to sue the others. For instance, we still have no idea what kind of visual impairment he has. And in case you missed it, lawsuits are expensive.

> ADA was intended for “reasonable accomodations” and I happen to agree with that intent.

But you don’t know what accommodations he was asking for, and despite that lack of knowledge, you pretend to know whether the accommodations were reasonable or not.

> It is time that ADA gets overhauled and these lawyers held accountable for what are basically bullshit lawsuits.

Boy, you have no idea what really goes on with the ADA, do you? What actually happens is that most ADA suits are bounced on bullsh— reasons. The idea that the ADA is some kind of cash cow for lawyers, is, pretty much bull. I won’t say there is no abuse of the ADA, but that is not the overall picture of what actually goes on. The overall picture is that the courts have set the standards for being disabled so high very few people count. Then they force them to affirmatively prove their qualifications, which after proving how handicapped they were is often impossible. Then the Supreme Court invented the concept of mitigating measures, saying that if a handicapped person could relieve their handicap my some treatment they were using, they were no longer protected. This despite the fact that the original act specifically said that a disability be determined without looking at accommodations. So is a wheelchair an accommodation or a mitigating measure?

So a man might have diabetes that is utterly irrelevant to his job, and be discriminated based on it, and if he is taking insulin or some other kind of effective treatment, the courts would say he was not even disabled and therefore the discrimination was legal. How insane is that?

What people don’t get is that the ADA is fundamentally an anti-discrimination law. The reasonable accommodation provision is simply to avoid an obvious loophole. It was actually first invented in the context of religious discrimination, so that if you were, say, jewish and the boss required you to work on Saturday, then your faith had to be accommodated if that was reasonable. Otherwise an anti-semite could say, “I’m not discriminating against jews, I am just requiring everyone to work on Saturday.” Ditto with handicaps. We don’t want someone to say, “I am not excluding paraplegics, I am just not building wheelchair ramps.”

So sony is saying “I am not excluding visually impaired people, I am just refusing to give these accommodations”—noting of course we don’t even know what the plaintiff was asking for. And until and unless we know what accommodation was being asked for—or for that matter, how severe the handicap was—we can’t know if Sony was just being obstinate, or if the accommodation he was seeking was unreasonable.

As the facts come out I might eventually come to agree with you guys. But at this stage, the suit is not laughable on its face. And the notion that the ADA is just used as legalized extortion is a gross distortion of what really goes on with the ADA.

12 gitarcarver 11.10.09 at 2:52 pm

AW,

I am going to blip in an blip out on this one but let me add some information:

Even if all he is asking for is to be able to modify the program?

At least one gaming site is reporting that is exactly what he wants to do. His thought process is that WoW (World of Warcraft) allows for mods, but the SOE (Sony Online Entertainment) game doesn’t.

Some have noted that WoW is run with a gaming engine that is public domain and therefore the code is available to everyone under the GNU licensing agreement.

SOE’s game uses a different engine, one that SOE developed.

Clearly SOE would be disadvantaged if their proprietary code was released out into the wild.

At what point in time does the ADA intrude into a private company’s intellectual property and their right to protect and use that property as they see fit?

The gentlemen is also suing under the idea of “economic loss,” as there are items that can be won in the online world that can be sold for cash.

13 A.W. 11.10.09 at 3:17 pm

Gitar

> Some have noted that WoW is run with a gaming engine that is public domain

I think you are misspeaking. It might be open code but I would be very surprised if WOW is not holding on to their proprietary rights.

> At what point in time does the ADA intrude into a private company’s intellectual property and their right to protect and use that property as they see fit?

Well, that is one of the concepts that goes into the term “reasonable.” And its one of the things the judge will be required to judge.

Now I admit I don’t know a whole lot about how games actually work (even though I love to play them), but my understanding is that the code of any game can be discerned and they are not secret. Pretty much anyone can get a development kit from sony, for instance. So maybe its really not such a big deal.

But add that to the long list of things I don’t know. And for all I know, it could turn out that his disability is BS, and the accommodations he is asking for is ridiculous. Totally possible. But I feel like this site sees it as almost a punchline level of it being facially ridiculous and I haven’t seen enough to even come close to justifying that.

> The gentlemen is also suing under the idea of “economic loss,” as there are items that can be won in the online world that can be sold for cash.

Come to think of it, I think he has a very basic problem with that: how can he know that he would earn any of it? So credit for creativity, but if I was a judge I would require them to explain why he can be so sure he would have gotten some money out of it—indeed, more than he would be putting into it.

I will add that in a very real way I would love to see some accommodation for visual impairments. Have you ever tried to play a PSP in a sunny location? Its not exactly easy. So maybe a windfall of accommodating those with visual impairments is a way to play games in sunny locations. That wouldn’t be a bad thing.

14 Ace of Sevens 11.10.09 at 4:14 pm

I’m not familiar with the specifics of the case, but I do know this type of issue because it comes up all the time in online gaming. One person’s accommodation is another’s cheat. Let’s say he had trouble distinguishing characters from the background and wanted something that would implement a differential color scheme making the backgrounds grey and characters pink. Well, spotting people is a lot of the challenge. This in addition to the issue of online game being public accommodations, which is a stretch.

15 Doug 11.10.09 at 4:28 pm

I am fairly certain that Sony would require a confidentiality requirement to get a kit at the minimum. I am sure the “kits” are not freely downloaded.

16 David Schwartz 11.10.09 at 10:29 pm

A.W.: “Ah, so next I suppose you will say a deaf person shouldn’t expect any captioning on any of his programs.
Or that a woman shouldn’t expect women’s restrooms.
Or a wheelchair bound man should not expect wheelchair ramps.
And if the makers of the SAT only want to deliver their tests on a Saturday, jews are sol.
Such an inclusive world you are imagining there.”

Project much? It’s your world that has no room for an SAT only given on Saturdays, not mine. It’s your world that has no room for TV without subtitles, not mine. You are the one who is advocating a world that is not inclusive. I have room for everyone and everything.

17 gitarcarver 11.10.09 at 11:34 pm

I think you are misspeaking. It might be open code but I would be very surprised if WOW is not holding on to their proprietary rights.

I don’t believe I am. The gaming engine – the way the game is driven and things are displayed – is open source under the GNU licensing. WHAT is displayed – the characters, settings, etc , the storyline, the plot, etc, THOSE are proprietary.

Now I admit I don’t know a whole lot about how games actually work (even though I love to play them), but my understanding is that the code of any game can be discerned and they are not secret. Pretty much anyone can get a development kit from sony, for instance.

Open source offers “kits.” Microsoft offers developer’s guides and “kits” for their products such as .NET. Remember the “mod” for GTA that revealed certain “racey” scenes? That was attacked by RockStar on the basis that the mod had no legal write to modify or change the code of the game. Most companies don’t allow modding the game itself.

If a person wanted to reverse engineer the gaming engine, they run into smack into the DCMA, which prohibits the very thing you are talking about.

It is somewhat interesting, if you think about it, that he is suing Sony who made the game rather than NVida or ATI for the way their cards and software display the game itself.

Just a side note:
Well, that is one of the concepts that goes into the term “reasonable.” And its one of the things the judge will be required to judge.

Lord help us. The one thing the last 10 years has taught us is that when it comes to technology like this, judges are incapable of rendering a verdict based on understanding the technology itself. The only group that is worse at it, is Congress.

18 Brubaker 11.11.09 at 6:26 am

A.W. wrote: “Aren’t you at all curious to find out what he wants, or how bad his disability is?”

Actually, no. If he is unable to play the game as it exists, move on. Do something else. Quit bitching!

I’d love to be an NFL quarterback, but that’s not happening. Should I sue the NFL? The underlying notion that the world should change to suit the disabled, rather than the disabled accepting their own limitations, is yet another example of mindless political correctness that ultimately hurts far more than it helps.

19 A.W. 11.11.09 at 8:45 am

David

> It’s your world that has no room for an SAT only given on Saturdays, not mine. It’s your world that has no room for TV without subtitles, not mine. You are the one who is advocating a world that is not inclusive.

Wow, the moral inversion is stunning. I suppose you thought Plessy was an inclusive decision, too.

I mean I especially love how you think it is appropriate to say to an orthodox jew: you must choose between your faith and going to college.

And deaf people just shouldn’t enjoy watching TV.

Inclusiveness!

Gitar

As for all the nuts and bolts issues with computers, I frankly just don’t know either way.

> The one thing the last 10 years has taught us is that when it comes to technology like this, judges are incapable of rendering a verdict based on understanding the technology itself. The only group that is worse at it, is Congress.

Well, the fact is we are a nation of laws. We cannot just let it be the wild west. I mean I won’t dispute that judges are sometimes clueless, but then it is really up to advocates to clue them in. Because judging in this arena is inevitable, even if not on the ADA, on contracts, on torts, on all kinds of things.

20 Ed 11.11.09 at 12:44 pm

Does it not state in the article that there are 3rd party applications that will do what he is looking for?

If there is already a workaround, what is the problem?

Also, I was not aware that subtitling was mandated.

21 Jay 11.11.09 at 1:52 pm

@Ed: The third party applications won’t work with most SOE games. They were used during the suit to demonstrate that other games have methods in place to assist disabled people directly from the manufacturer, or to at least allow third party modifications that can make it easier.

@Gitar: I don’t think the entire engine is in the public domain, but Blizzard has gone out of their way to make WoW as open to modders as possible. It’s very easy to hook into a lot of the actions and parameters and display them as you’d like, and the language they use is released under a MIT license…but you still have to hook into proprietary hooks to access the data.

The bottom line is that it could quite possible not be reasonable for SOE to make the changes required to allow these sorts of hooks. Other games were designed from the ground up to have some allowance for it…but if SOE had to completely redo their engine to accommodate someone, it’s going to be a huge cost.

The part of the whole case that makes me a bit suspicious is that the user that filed the suit went after the only major US company to allow, and even encourage, sales of in-game items, gold, and characters to other people for real money. I suppose I should be giving the plaintiff the benefit of the doubt, and assume that he has a bunch of friends that play one particular game, and that’s what drives him to continue down this path rather than play one of the more accommodating games out there. Certainly he can’t have enjoyed playing the game(s) up to this point (unless he became recently disabled), so there must be something else driving this suit. I’d believe a desire to make games more accessible to all if there wasn’t the bit about potential lost wages thrown in.

22 A.W. 11.11.09 at 1:57 pm

Ed

> Does it not state in the article that there are 3rd party applications that will do what he is looking for?

No. the article says it does the job with other programs, but not sony’s.

> Also, I was not aware that subtitling was mandated.

I don’t believe it is for games. but captioning is required for TV.

23 David Schwartz 11.11.09 at 7:06 pm

AW: There is no comparison between government conduct and private conduct, so your mention of Plessy is irrelevant.

“I mean I especially love how you think it is appropriate to say to an orthodox jew: you must choose between your faith and going to college.”

What if my religion requires me to only drive cars with square steering wheels? Do I have a lawsuit against Ford?

And what if my religion prohibits going to college? Then I have to choose between my faith and going to college. How unfair! I should be able to believe anything I want and not have to make any hard choices about compromising my faith, right?

What a load of nonsense!

24 A.W. 11.12.09 at 10:40 am

David,

> There is no comparison between government conduct and private conduct, so your mention of Plessy is irrelevant.

Except that you think segregation and exclusion is inclusive.

> What if my religion requires me to only drive cars with square steering wheels? Do I have a lawsuit against Ford?

I wasn’t aware that any religion had an opinion on the subject, but black letter law says that a company must make reasonable accommodations for religion, too.

But again, you would force jews to choose between their faith and college.

And btw, when it comes to the SAT, THAT IS STATE ACTION, TOO. The SAT is a standard test used both by private and public universities, sometimes as the exclusive test to be used (although the ACT is being increasingly used as an alternative).

> I should be able to believe anything I want and not have to make any hard choices about compromising my faith, right?

Except most of the time Christians have to do no such thing. Christianity in all its various forms is typically accommodated. When I took the SAT’s and the LSAT’s, they didn’t even schedule them on Sundays, for instance. Most laws against underage drinking have de facto or de jure exceptions for communion. But there is no religious exemption for the ban on peyote. The majority makes sure they are never screwed over by the general laws but are at best indifferent to the hard choices presented to minorities by their general laws.
Of course you don’t get to go completely crazy on this. If a man says his religion requires him to commit an honor killing, well tough on him. that is why the word “reasonable” is in the phrase “reasonable accommodations.”

So a jew says, “my faith won’t allow me to take this test on Saturday. Can I take it another day?” that seems pretty reasonable to me. On the other hand, “my faith requires me to kill my daughter for not dressing modestly enough. Please don’t prosecute” is a pretty unreasonable request.

So it’s a bit of a straw man to pretend that all kinds of unreasonable requests would have to be honored.

25 David Schwartz 11.12.09 at 12:21 pm

“And btw, when it comes to the SAT, THAT IS STATE ACTION, TOO. The SAT is a standard test used both by private and public universities, sometimes as the exclusive test to be used (although the ACT is being increasingly used as an alternative).”

So if CIA agents eat at my restaurant, my choice of shrimp supplier becomes state action?

“So it’s a bit of a straw man to pretend that all kinds of unreasonable requests would have to be honored.”

If you know some criteria by which we can judge which religious beliefs are reasonable and which aren’t, I’d like to hear it. And do you really think the law should consider, when evaluating an accommodation for a religious belief, how many people hold that religious belief?

And if the test is based on the reasonableness of the accommodation and not the belief, how is making a car with a square steering wheel and less reasonable than holding a test on a different day?

So if the request is reasonable and even one people hold the belief, is the accommodation required? If so, we’re back to Ford having to make a car with a square steering wheel if even one person has a religious belief that requires it.

26 Ed 11.12.09 at 12:46 pm

Quite the assumption that the Christians got the SAT on Saturday and not Sunday. I am sure that it has nothing to do with the fact that most major league sporting events take place on Sundays.

Speaking of which, should the NFL, NHL, MLB, NASCAR and many others have to move their events to another day if a Christian wants to participate and follow their faith as well?

If we are going to make faith based accommodations, which faiths are we allowing? I am sure that the First Church of Bob would love to start it’s own holidays.

If we are going to make ability based accommodations, how far does it go? So a guy with poor to no vision cannot play a VIDEO game. How put out is he, really. I am overweight and have bad ankles (they predate the tonnage) but I would love to play in the NBA, should they accommodate me?

Common sense and law rarely go together anymore.

27 A.W. 11.12.09 at 12:52 pm

David,

> So if CIA agents eat at my restaurant, my choice of shrimp supplier becomes state action?

No, but when the CIA hires a private company to serve in its company lunchroom, it is. That is black letter law.

And in this case this makes absolute sense. If a state school hung a sign out saying, “no jews allowed” I think even you would oppose that. And maybe you would even oppose a school administering its own test on Saturdays only. But apparently if the state farms out that part of its admissions decision to a private company you want to pretend there is no government action.

> If you know some criteria by which we can judge which religious beliefs are reasonable and which aren’t, I’d like to hear it.

Are you incapable of reading. The phrase is “reasonable accommodation” not “reasonable beliefs.” Although you have to assume that if you come in claiming your faith is “jedi” that the sheer silliness of your religion will factor in.

> And do you really think the law should consider, when evaluating an accommodation for a religious belief, how many people hold that religious belief?

I would tend to say that the more common a non-conforming belief is the greater the argument for accommodation. Really, in this day and age, if you put a test on Saturday only, how do you not know you are excluding jews?

> And if the test is based on the reasonableness of the accommodation and not the belief, how is making a car with a square steering wheel and less reasonable than holding a test on a different day?

Actually if there was a bona fide religion that required it, well, I have seen steering “wheels” that were shaped like an I turned sideways for style purposes only, so its really hard for me to understand why it would be very hard to make it rectangular. But I am open to their argument if they want to make it. i won’t pretend to know enough about building cars to know for sure whether it is reasonable or not.

But I do find it curious that you seem to think making the whole world “one size fits all” is inclusive.

> So if the request is reasonable and even one people hold the belief, is the accommodation required? If so, we’re back to Ford having to make a car with a square steering wheel if even one person has a religious belief that requires it.

Yes, if it is a reasonable accommodation to a bona fide religious belief, in your crazy hypothetical, remembering of course that part of the determination of reasonability is whether it places an undue burden on Ford. And really if it doesn’t cost them that much what do you care if one guy gets a square steering wheel? I mean if you stipulate that it is reasonable to ask for this, then what exactly is your argument against it? You can’t say the guy is just being unreasonable, now can you?

28 A.W. 11.12.09 at 1:10 pm

Ed

> Quite the assumption that the Christians got the SAT on Saturday and not Sunday. I am sure that it has nothing to do with the fact that most major league sporting events take place on Sundays.

My point was much more basic. For whatever reason they put it on Saturday, they never would have even considered putting it on Sunday because of the Christian faith if for no other reason.

And if you want to argue that instead they were accommodating people who loved sports, well how much more offensive is that? If I was a jew I would be like, “you’ve got to be kidding me? Accommodations for sports fans but not for my faith in God?”

> Speaking of which, should the NFL, NHL, MLB, NASCAR and many others have to move their events to another day if a Christian wants to participate and follow their faith as well?

I would say that requiring them to pick a day of the week where their ratings are guaranteed to be poor is probably an unreasonable request.

> If we are going to

You seem to think I am proposing something. This is actually the law, since 1964—as it pertains to faith.

> So a guy with poor to no vision cannot play a VIDEO game. How put out is he, really.

And if a deaf person cannot watch tv… and a blind person can’t shop in a store because they can’t bring their seeing eye dog… how much are they put out? /sarcasm

Why should a handicapped person be shut out of a sector of life when it only takes a reasonable accommodation to allow him to participate. Seriously, after spending 2 hours in traffic each day, mindlessly blowing sh– up playing mercenaries 2 is downright therapeutic. Why should they be shut out of that when all it takes is a reasonable accommodation to let them in? its that reasonable accommodation standard that separates the companies who really can’t make it work from those companies that don’t do it because they don’t care about those people.

Look I am not saying Sony is definitely in the wrong here. I am just saying, until you know more about the handicap at issue, and the accommodations requested, you can’t say they were right, or apparently what this site seems to think, which is that it is crazy on its face.

29 David Schwartz 11.12.09 at 2:10 pm

“And in this case this makes absolute sense. If a state school hung a sign out saying, “no jews allowed” I think even you would oppose that. And maybe you would even oppose a school administering its own test on Saturdays only. But apparently if the state farms out that part of its admissions decision to a private company you want to pretend there is no government action.”

No, I want to limit the government action to the actions of the government. If the state farms out its admissions decision to a company that doesn’t make reasonable religious accommodations, that that is a government action. If the state wants to negotiate religious accommodations into its contracts and even if you want to require it to do so, that’s fine with me.

But you cannot point to any government action and say that that transforms private action into government action. The government cannot transform private action into government action without the private actor’s consent. And where private action is government action because the government made it so, it is still the whatever the government did that made it state action that is the issue.

If the government asks Burger King to bring in burgers to feed prisoners, it is not Burger King’s fault that vegetarians are not accommodated.

30 David Schwartz 11.12.09 at 2:11 pm

“Yes, if it is a reasonable accommodation to a bona fide religious belief, in your crazy hypothetical, remembering of course that part of the determination of reasonability is whether it places an undue burden on Ford. And really if it doesn’t cost them that much what do you care if one guy gets a square steering wheel? I mean if you stipulate that it is reasonable to ask for this, then what exactly is your argument against it? You can’t say the guy is just being unreasonable, now can you?”

The point, this means one private party can force another private party to do anything reasonable, simply by putting the right ideas in their head. If you think that’s a recipe for *inclusion* you are out of your mind. That’s a recipe for forcing homogeneity.

31 A.W. 11.12.09 at 2:34 pm

David

> The government cannot transform private action into government action without the private actor’s consent.

Well, the consent is when they deal with the government. So when the SAT sends its test scores directly to the schools I don’t see how they can be surprised when someone say “you are performing the school’s function.”

Even in your BK example, you know BK is consenting too. They don’t have to fulfill the government’s order. They can say, “you know what? Working with you carries too many strings. Take a hike.” For instance that is why Ford refused stimulus money, because they knew that our idiot president would make them pay dearly.

And more fundamentally, the government should not be using a test that discriminates against a person in an unfair manner.

And that is assuming that private individuals should be allowed to discriminate. How far do you take that friend? If a store said “whites only” you would be cool with that? How about if it said “no jew will be hired?”

And let’s suppose that you wouldn’t allow a company to refuse to hire jews, or more precisely to discriminate according to faith. Then how do you deal with the obvious loophole, where the employer says, next, “okay from now on everyone has to work on Saturday.” Then he can say, “I’m not discriminating against jews. I am just discriminating against people who refuse to work on Saturday.”

And your strict no-accommodation-even-when-reasonable approach starts to stink particularly bad when it comes to disability. A person can compromise their faith. Disability is a little more stubborn. A paraplegic can’t choose to suddenly walk. A blind man can’t choose to suddenly see. A deaf person can’t choose to suddenly hear. But you would say that even if the accommodation they are seeking is reasonable, that they should still be excluded. And bizarrely you call that exclusion inclusive. Yike. I thought it was mostly liberals who abused the language.

> That’s a recipe for forcing homogeneity.

Taking your silly hypothetical for the 5th time, all fords having round steering wheels but one that is square is literally NOT HOMOGENOUS. I mean as an issue of the definition of the word “homogenous” that is incorrect. You can rightfully call it enforced diversity, but not forcing homogeneity.

And its bizarre again. The average car buyer can choose:

Automatic or manual transmission
Cruise control or not
Radio/cd player/ipod dock
Electric or manual locks and windows
The color of their car
Leather interior
Often convertible or not
Climate control options
Often hatchback or sedan.

and so on. but apparently choosing a square steering wheel is somehow the end of the world to you. And then weirdly you pretend this is going to make all cars alike, when we are only talking about making one different.

32 Bob Lipton 11.12.09 at 5:06 pm

Make your own damned square steering wheel.

Bob

33 David Schwartz 11.12.09 at 5:10 pm

“Taking your silly hypothetical for the 5th time, all fords having round steering wheels but one that is square is literally NOT HOMOGENOUS. I mean as an issue of the definition of the word “homogenous” that is incorrect. You can rightfully call it enforced diversity, but not forcing homogeneity.”

Ford would have to make a square steering wheel. So would Toyota. So, too, would Lexus.

Presumably, if Ford deliberately designed a car such that it could not accommodate a square steering wheel, that would also cause the same problem. Otherwise, one could circumvent the law by deliberately making accommodations difficult.

OF COURSE it’s a recipe for homogeneity. That you don’t see that is stunning.

“but apparently choosing a square steering wheel is somehow the end of the world to you.”

That you style this as having anything to do with choice, when it’s about legal compulsion is likewise stunning.

34 David Schwartz 11.12.09 at 5:19 pm

“And your strict no-accommodation-even-when-reasonable approach starts to stink particularly bad when it comes to disability. A person can compromise their faith. Disability is a little more stubborn. A paraplegic can’t choose to suddenly walk. A blind man can’t choose to suddenly see. A deaf person can’t choose to suddenly hear. But you would say that even if the accommodation they are seeking is reasonable, that they should still be excluded. And bizarrely you call that exclusion inclusive. Yike. I thought it was mostly liberals who abused the language.”

Compelling everyone else to design the world around *your* disability is utterly exclusive. Everyone else’s design must yield to your peculiarities. Apparently, if you are disabled, the whole world must be designed around your specifications, assuming such a design is ‘reasonable’.

To say that forcing everyone else to accommodate you is “inclusive” is bizarre. An “inclusive” world includes things that are exclusive. An all-inclusive world can only exist by prohibiting exclusion.

“And that is assuming that private individuals should be allowed to discriminate. How far do you take that friend? If a store said “whites only” you would be cool with that? How about if it said “no jew will be hired?””

Right, you don’t want an inclusive world because that means some people will do very mean and unfair things. Just don’t pretend that you do this is some spirit of inclusion.

An intolerance of intolerance is itself a form of intolerance.

As for whether I would “be cool with that”. No, I would not be. And I would do everything within my power to combat it. However, where government action is not involved, my just power does not extend to compulsion.

And I utterly reject your argument that choosing to do business with the state transforms private action into state action. State actions must be actions taken by the state. (And the State cannot get around the requirement to comply with the law by ‘outsourcing’ because if the State chooses to outsource, that choice is State action and that choice is what should be subject to legal attack.)

35 A.W. 11.12.09 at 5:26 pm

David

> Ford would have to make a square steering wheel. So would Toyota. So, too, would Lexus.

Your hypothetical named one man.

And are you under the impression that there is presently a great diversity in steering wheels?

> Presumably, if Ford deliberately designed a car such that it could not accommodate a square steering wheel, that would also cause the same problem.

Um, seriously, I have had it with your silly example. Seriously, would you care to explain why a steering wheel has to be round? And how could a person possibly make it impossible for the steering wheel to be a square?

> That you style this as having anything to do with choice, when it’s about legal compulsion is likewise stunning.

Of course it is compelling ford to offer the person that choice. And?

When you tell an employer that he has to hire without regard to race, you are compelling him, and giving prospective employees a greater set of choices. When you tell a hotel chain that they can’t exclude black people, you are compelling them into giving black customers a choice. Seriously, do you have any idea how difficult it was for black people to go across this country before the civil rights act of 1964?

And are you saying you want to reverse that?

And you would say to disabled people that they can be barred from entering stores, enjoying television, and so on, and then turn to them and say, “isn’t freedom grand?”

36 A.W. 11.12.09 at 5:39 pm

> Apparently, if you are disabled, the whole world must be designed around your specifications, assuming such a design is ‘reasonable’.

And you are standing up for the right to be unreasonable and to discriminate. Lovely.

> [me] And that is assuming that private individuals should be allowed to discriminate. How far do you take that friend? If a store said “whites only” you would be cool with that? How about if it said “no jew will be hired?”

> [you] Right, you don’t want an inclusive world because that means some people will do very mean and unfair things. Just don’t pretend that you do this is some spirit of inclusion.

> [you] An intolerance of intolerance is itself a form of intolerance.

Wow, so what this really comes down to is you oppose the entire project of protecting any person from private discrimination. And indeed, you also think that the state should be able to outsource to bigots.

Well, as the man who wrote the 14th Amendment said, “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” That was his vision, and I agree.

And is that in a limited sense intolerant? Guilty. I think in general we should be more intolerant of intolerance. For instance, that guy who shot up Ft. Hood? He was a fricking intolerant man and if we were a little more intolerant of his intolerance, maybe 13 soldiers would be alive today who aren’t.

Not that I assume disagree with me about ft. hood. I just don’t get why you think tolerating bigotry is a good thing. Of course you can feel free to harbor bigotry in your heart and even express it (though I would say not in the army), but while what you think and say is your freedom and your right, what you DO is not.

> State actions must be actions taken by the state. (And the State cannot get around the requirement to comply with the law by ‘outsourcing’ because if the State chooses to outsource, that choice is State action and that choice is what should be subject to legal attack.)

But whether we are talking about the SAT or your BK example, they are outsourcing it. they are taking something they could have done themselves and asked someone else to do it for them. Are you having trouble with the concept of outsourcing like you are with the concept of conformity?

37 Walter Olson 11.12.09 at 5:49 pm

Let me suggest that as the topic has been well aired by this point, and feelings are running high, commenters might just want to lay the issue aside and acknowledge that we aren’t all going to agree.

38 David Schwartz 11.12.09 at 7:13 pm

You’re right. This isn’t the right forum for this particular argument. In any event, I have to get back to more important things such as standing up for the right to love one’s mother and eat apple pie.

39 A.W. 11.13.09 at 9:00 am

David,

I will add one thing, and be done. If you go back to the hotel of atlanta case, testing the civil rights act of 1964, that should show you how much racial discrimination in a very real way limited the ability of african americans to move about in our society. I think you should read up on that subject if you are going to continue that stance, assuming you haven’t done so already. This is no minor inconvenience we are talking about.

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