Judge Allows Justice Department to Join MPVA Lawsuit

Michigan Daily

Feds get OK to inspect stadium

By Gabe Nelson, Daily News Editor
November 26, 2007

A judge on Wednesday granted the U.S. Department of Justice permission to send a squad of investigators to Michigan Stadium to examine the stadium facilities and determine whether they comply with the Americans with Disabilities Act.

U.S. District Judge Sean Cox approved the visit at a hearing in federal court Wednesday where he also approved the Justice Department's request to become a co-plaintiff in a suit filed in April by the Michigan Paralyzed Veterans of America. The suit says the stadium violates federal accessibility standards.

The visit, scheduled to begin on noon tomorrow and continue for at least five days, will allow Justice Department attorneys to build a case against the University.

University spokeswoman Kelly Cunningham said the University will provide the Justice Department with whatever information it needs for its investigation. The Education Department's Office of Civil Rights has accused the University of impeding its investigation by ignoring requests for information or documents regarding the stadium.

"We're happy to accommodate them - whatever they need," Cunningham said. "We'll continue to be cooperative, just like we always have."

Cunningham said she thinks the Justice Department's visit will clear up accusations made by the Office of Civil Rights.

In a response to the office sent by the University earlier this month, Gloria Hage, the University's interim general counsel, wrote that the University repaired some stadium facilities - like bathrooms and concessions - after the Office of Civil Rights informed the University that they didn't meet code.

Cunningham said the Office of Civil Rights has continued to claim that these problems exist, although the University has sent the office photos showing that they have been repaired. She said she hopes Justice Department investigators will measure the dimensions of stadium facilities and find that the University has taken steps to bring the stadium into compliance.

Federal investigators joined the suit upon the request of the Office of Civil Rights, which began an investigation of the stadium eight years ago after several fans raised concerns about the stadium's accommodations.

Last month, the office sent the University a letter threatening to refer the case to the Department of Justice if the University didn't address the office's findings, which included an insufficient amount of wheelchair-accessible seating, as well as bathrooms, concessions and ramps that violated federal accessibility standards.

During the visit, Justice Department investigators will try to definitively discover how much of the stadium has been reworked since the Americans with Disabilities Act took effect in 1990. Richard Bernstein, an attorney for the Michigan Paralyzed Veterans of America, said the University has made many small repairs to the Big House - like replacing concrete in the bowl, lowering the field and installing new benches - to disguise what amounts to an overhaul of the stadium.

Bernstein said Justice Department officials told him that investigators will perform tests on samples of concrete from the seating bowl and from support beams to determine exactly to what extent the stadium has been altered.

The distinction between a "repair" and an "alteration" becomes significant in federal accessibility standards policies because buildings built before the ADA took effect must be brought up to code after an alteration takes place.

While the University has argued that Michigan Stadium is exempt from ADA requirements because it was built long before the law went into effect and has only been repaired since then, the Michigan Paralyzed Veterans of America and Office of Civil Rights officials argue that concrete replacement projects that took place over the last 15 years should be considered alterations that would require the University to bring the stadium into compliance with all aspects of the ADA.

If a judge rules that work on the Big House was an alteration rather than a repair, the University will be required to rework the building to add hundreds more wheelchair-accessible seats.

Michigan Stadium currently has 92 wheelchair-accessible seats and was slated to include about 300 after renovations that began earlier this month wrap up in 2009. The ADA requires that structures like Michigan Stadium make about 1 percent of all seats wheelchair-accessible - meaning the Big House would need more than 1,000 to meet the most stringent requirements.

After negotiations with the Office of Civil Rights, the University offered last week to add up to 300 more wheelchair-accessible seats on removable platforms around the seating bowl over the next few years.

The Office of Civil Rights rejected the plan on Tuesday, saying the plan wouldn't provide enough seating to disabled fans, wouldn't add new seats quickly enough and wouldn't address other concerns about the stadium's compliance with federal standards. It referred the case to the Justice Department, which filed a motion asking to join the Michigan Paralyzed Veterans case that afternoon.

Bernstein said the Justice Department's decision to join the case will help defray some of the costs of the lawsuit. He is representing the group pro bono, meaning his law firm is absorbing all the group's legal costs.

Bernstein also said the Justice Department has the expertise and the power to make sure the University is following ADA regulations for years to come - regardless of the outcome of the lawsuit.

"I'm not really equipped to do rigorous enforcement. The Department of Justice is. But we will get to that as this proceeds," Bernstein said. "This litigation is going to go on for a very long time."

Representatives from the Justice Department could not be reached for comment yesterday.