Within the last week, the Supreme Court has come down with two decisions of relevance to our blog (Osseo Area Schools and Ames). Each is worth a separate blog. This week’s blog entry is going to be the Osseo Area Schools, which I previously blogged on its oral argument here. As usual, the blog entry is divided into categories and they are: Justice Roberts unanimous opinion for the Court; Justice Thomas with Justice Kavanagh joining, concurring opinion; Justice Sotomayor with Justice Jackson joining, concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Justice Roberts for the Court

 

  1. Outside of the context of elementary and secondary education, plaintiff can establish a statutory violation and obtain injunctive relief under the ADA and the Rehabilitation Act without proving intent to discriminate. However, to obtain compensatory damages, Courts of Appeals generally agree that a plaintiff must show intentional discrimination. In those situations, a showing of deliberate indifference is required. However, deliberate indifference does not require a showing of personal ill will or animosity towards the person with the disability.
  2. Nothing in the text of Title II of the ADA or §504 of the Rehabilitation Act suggests that claims arising in the education context should be subject to a distinct more demanding analysis.
  3. The substantive provisions of both Title II and §504 by their plain terms, apply to qualified individuals with disabilities, and there is no textual indication that the protections of either disability discrimination statute apply with lesser force to certain qualified individuals bringing certain kinds of claims.
  4. Both Title II and §504 make their remedies, procedures, and rights available to any person.
  5. 20 U.S.C. §1415(l) explicitly states that nothing in the IDEA shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the ADA, Title V of the Rehabilitation Act (including §504), or other federal laws protecting the rights of children with disabilities.
  6. Reading IDEA to implicitly limit the ability of children with disabilities to vindicate their independent ADA and Rehabilitation Act rights is irreconcilable with the unambiguous directive of §1415(l). It also conflicts with the Eighth Circuit’s own interpretation of its precedent.
  7. Both parties agreed at oral argument that different standards for educational situations v. noneducational situations made no sense.
  8. Reviewing whether there should be a “bad faith or gross misjudgment,” standard was never presented to the court and should not be considered without adversarial briefing.
  9. The challenges that students with disabilities have to face do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination under Title II of the ADA or under §504 of the Rehabilitation Act.

 

II

Justice Thomas with Justice Kavanagh Joining, Concurring Opinion

 

  1. The school district argues that §504 unambiguously covers only intentional discrimination and nothing in §504 conveys congressional intent to impose liability on schools for unintentional discrimination.
  2. The commerce clause does not give Congress sweeping power to protect the learning environment in schools.
  3. The 14th amendment does not require schools to make special accommodations for the disabled. Rather, it prohibits only conduct lacking a rational basis.
  4. Title VI prohibits only intentional discrimination.
  5. The Supreme Court has held that private individuals can only recover compensatory damages under Title VI if they show intentional discrimination.
  6. There has to be skepticism about whether the same statutory language can mean two different things depending upon the relief sought.
  7. The school district has a point with respect to its constitutional objection when it argues that the Constitution compels a plaintiff to prove intent to discriminate before court can find a violation of Title II or §504 or award any kind of relief.
  8. Since constitutional compliance for spending clause legislation rests upon whether the recipient voluntarily and knowingly accept the term of the contract, the district’s argument that §504 unambiguously covers only intentional discrimination has something to it.

 

III

Justice Sotomayor with Justice Jackson Joining Concurring Opinion

 

  1. The text and history of both the ADA and §504 of the Rehabilitation Act foreclose any requirement that proving intentional discrimination is mandatory.
  2. Title II of the ADA provides that 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 the public entity, or be subjected to discrimination by any such entity.
  3. The statutory language contains no reference to improper purpose. To the contrary, the phrase “by reason of,” requires no more than a causal link between the individual’s disability and their exclusion from participating in or receiving the benefits of a covered service, program, or activity. That is the ordinary meaning of the phrase, “by reason of.”
  4. Persons with disability can lose access to benefits and services “by reason of,” or “because of,” their disabilities absent any ambiguous animus or purpose, i.e. intentional discrimination. For example, stairs may prevent a person using a wheelchair from accessing a public space. Another example, the lack of auxiliary aids may prevent a deaf person from accessing medical treatment at a public hospital. Yet another example, braille-free ballots may preclude a blind person from voting. None of these situations involve any animus on the part of the city planner, hospital staff, or the ballot designer. Therefore, both the ADA and §504 reach cases involving a failure to accommodate, even where no ill will or animus toward people with disabilities is present.
  5. Both statutes impose an affirmative obligation on a covered entity to provide reasonable accommodations, which also undercuts any improper purpose requirement. Those affirmative obligations to reasonably accommodate persons with disabilities underscore that the statutes do not require improper purpose to prove liability.
  6. The use of the passive voice in both statutes only reinforces that conclusion. Congress use of the passive voice often indicates a focus on the event that occurs without respect to a specific actor, and therefore without respect to any actor’s purpose.
  7. The Supreme Court has previously recognized that when Congress enacted the Rehabilitation Act, it perceived discrimination against persons with disabilities as most often the product not of ambiguous animus but rather of thoughtlessness and indifference-of benign neglect.
  8. Much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach where the Rehabilitation Act were to be construed to prescribe only conduct fueled by a discriminatory intent. That observation applies with equal force to Title II of the ADA, which Congress modeled on §504 of the Rehabilitation Act.

 

IV

Thoughts/Takeaways

 

  1. In Justice Roberts’ opinion for the Court he states at the end:

 

“That our decision is narrow does not diminish its import for A. J. T. and “a great many children with disabilities and their parents.” Luna Perez v. Sturgis Public Schools, 598 U. S. 142, 146 (2023). Together they face daunting challenges on a daily basis. We hold today that those challenges do not include having to satisfy a more stringent standard of proof than other plaintiffs to establish discrimination under Title II of the ADA and Section 504 of the Rehabilitation Act.”

 

This is not the first time we have seen Justice Roberts use language indicating that he gets disability beyond a theoretical construct. It also makes you wonder how he would decide a case asking for a strict  intentional discrimination standard across the board of the ADA/§504 universe.

  1. After this case, the standard for getting compensatory damages for Title II or §504 claims is clearly deliberate indifference. What does that standard actually mean is unclear from the opinion for the Court. However, Justice Sotomayor cites with approval a case that we previously blogged on here. That case is already the leading case in the area of deliberate indifference with respect to Title II of the ADA and §504 and may become even more prominent now.
  2. Failure to accommodate situations often do not involve intentional discrimination at all as Justice Sotomayor ably lays out. For example, two instances happened to me yesterday when I was coming back from my trip. First, a flight attendant did not encourage a person sitting next to me to tap me to find out if I was interested in having a drink and a snack on the flight. Apparently, she did wave at me, but I did not see it. I previously had been on a flight where the flight attendant instantly realized that I may have a hearing loss and then asked a person next to me to tap me so as to get my attention. I made the mistake yesterday of assuming that every flight attendant would do that. In the future, I will notify the flight attendant when boarding that there may be an issue. The point of this incident is that there was no ill will intended in that moment but rather a failure to accommodate. Another example is, when I tried to leave the remote airport parking lot, the machine would not process my ticket. The cashier, two booths over, was wearing a mask and trying to explain to me what I had to do. I had to tell her that I could not understand her because she was wearing a mask (I am a lip reader), and that I was deaf. Eventually, she raised the level of her voice and also used hand motions so that I could figure out what I had to do. In both of these cases there was no intentional discrimination. The ADA certainly has other provisions in it reaching beyond the failure to accommodate scenario, but certainly with respect to failure to accommodate matters, intentional discrimination cannot possibly be something that would be required.
  3. One of the things going on with the different opinions in Osseo, is that it is possible there is some confusion about how different each of the titles of the ADA are from each other. They all deal with the same definition of disability and a reasonable accommodation/modification paradigm, but after that they can diverge quite a bit. Attorneys may need to educate the judges they are before as to the differences.
  4. We do know from this blog entry, that emotional distress damages are out for §504 claims. Open question whether they might be in for Title II claims, though the courts so far are consistently holding that emotional distress damages are not in play for Title II claims.
  5. Expect this case to have wide impact with respect on Title II and §504 litigation. However, you can find dozens and dozens of cases saying that to get damages under Title I of the ADA, intentional discrimination is required. In fact, good faith on the part of the employer is a defense to damages claims. See also §IV(4) of this blog entry.
  6. The term “special accommodation,” drive many of us in the disability rights space absolutely bonkers. There is nothing special so to speak about the accommodations we need. All that is needed is the reasonable accommodations that get us to the same starting line as a person without a disability. In short, for that reason and because the term is often used in a pejorative way, stay away from using the term “special,” or “special accommodation,” whenever possible.
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.

Read more about William GorenEmail
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