Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

§504

Just where are ESA and service animals allowed on college and university campuses? The true false Analysis

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I am a little bit late with an entry this week. However, I have a good excuse. My 14-year-old daughter went off to overnight camp for the first time. She will be gone 4 weeks! That leaves my wife and I empty nesters. This is going to take some getting used to.

The blog entry of the week is actually an Office of Civil Rights letter to Delaware Technical Community College dated July 15, 2016, that appeared in the Disability Compliance for Higher Education publication by Wiley, which I highly recommend for anyone dealing with disability compliance issues in higher education. There are lots of lesson to be learned from that letter. Also, there is a statement made in there that has everyone hopping, and we will discuss that. As usual, the blog entry is divided into categories and they are: true or false; answers; how well did you do; and explanations. While there are a bunch of categories, I can’t see why you wouldn’t read the whole thing.

I

True or False

  1. If a student refers to her dog as a pet even though she says it is needed to accommodate a disability, one can automatically deem it a pet.
  2. Only two questions are allowed if it is not obvious that the dog is a service dog.
  3. An emotional support animal can never be a service dog.
  4. Reasonable documentation can be obtained to assess whether an animal is an emotional support animal.
  5. Reasonable documentation cannot be asked for in order to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal must carry an ID card certifying that the animal is a service animal or an emotional support animal.
  7. A College or University can take action if the dog is behaving in an out-of-control manner.
  8. A dog that fends off impending anxiety attacks of a student by licking her face and pawing at her to let her know that an anxiety attack is likely to occur is a service dog.
  9. A college may not require an individual to register a service animal.
  10. Emotional support animals are only applicable to residential facilities in campus housing pursuant to the Fair Housing Act.
  11. A) While comfort animals are not considered service animals under the ADA, they may be considered a necessary accommodation under §504; B) an institution has the obligation to engage in the interactive process… C) to assess an individual’s need for this accommodation. This is the statement referenced above.
  12. Emotional support animals can include other animals besides dogs.

II

Answers

  1. False
  2. Unclear
  3. False
  4. True
  5. True
  6. False
  7. True
  8. True
  9. True
  10. True
  11. A) not buying; B) true; C) not buying with respect to emotional support animal throughout campus.
  12. True

III

How well did you do?

If you got all 12 right, consider yourself best in show.

If you got 10 right, consider yourself as winning best in your group, but you want to move up to best in show certainly.

If you got 7-9 right, consider yourself as winning best in breed, but you certainly want to move up to winning your group and eventually best in show.

If you got below seven right, you need to have a trainer come in and/or consult knowledgeable legal counsel.

 

III

Explanations

  1. A student may not realize the difference between a pet and a service dog under the ADA. To the student, they may think of their service animal as a pet. When it comes to determining whether it is a service dog, what they think is not dispositive. The question is whether the dog has been trained to engage in recognition and response.
  2. We have discussed this issue in this blog entry. As I mentioned in that blog entry, my original understanding was that only two questions are allowed. If you look at the Department of Justice frequently asked questions publication, it uses the term, “only,” as does the OCR letter. On the other hand, how can you engage in the interactive process, which you are required to do under titles I-III, if you are so limited in the question you can ask even when narrowly focused follow-up questions can be posed if the answers are unclear?
  3. If a person is using a dog as an emotional support animal, it’s entirely possible that it also could be a service dog if it is acting in recognition and response mode and has been trained to do that.
  4. The Fair Housing Act does allow for reasonable documentation to be obtained to assess whether an animal is an emotional support animal.
  5. The ADA final implementing regulation do not allow for documentation to assess whether a dog is a service dog outside of the employment context.
  6. A person with a service dog or an emotional support animal cannot be required to carry documentation stating that the animal is a service animal or an emotional support animal.
  7. If a dog is behaving in an out-of-control manner, then action to exclude the service dog can be taken. The owner of the service dog is responsible for its care and handling.
  8. This dog is engaging in recognition and response and clearly has been trained to do that. Keep in mind, professional training is not necessary for the dog to be a service dog.
  9. Nothing wrong with a voluntary registration process. The problem with that approach is that voluntary often turns into mandatory. Also, since the questions for service dogs are so limited, a voluntary registration process may lead to people asking questions they are not allowed to ask.
  10. The Fair Housing Act applies to dormitories as we discussed here. It does not apply to the rest of the College and University. For the rest of the College and University, it would be the ADA (title II or title III), and §504 of the Rehabilitation Act. Accordingly, emotional support animals can be limited to residential facilities in campus housing. See also ¶ 11 below
  11. A) comfort animals are not considered service animals under the ADA; B) institution to have the obligation to engage in interactive process with respect to a student with a disability; and C) an institution does not have the obligation to engage in the interactive process with respect to allowing the emotional support animal throughout its campus despite what this letter from the Office of Civil Rights says. In particular, nothing in title II or title III DOJ’s final implementing regulations suggest emotional support animals must be allowed everywhere. In fact, the inference is exactly the opposite. Also, nothing in the §504 regulations suggest that emotional support animal should be allowed everywhere. Finally, since there are no regulations that have gone through the proper commenting process dealing with §504 and emotional support animals, I don’t see how a court would give deference to the interpretation of this regional office of OCR with respect to emotional support animals possibly being allowed everywhere. In short, to my mind, a College or University is on very solid ground in restricting an emotional support animal to the dormitories/living facilities.
  12. The Fair Housing Act allows for animals besides dogs to be emotional support animals. Colleges and universities are given latitude with respect to animals that pose a health or safety risk to others. You also want to make sure you check your local and state laws regarding animals that are permissible in dwellings.

Using Common Sense for Service Animals and Essential Eligibility Requirements

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In law school, there is a saying that a student goes in with common sense and comes out with common law. However, there is still room for common sense in the law. Today’s blog entry is actually a two-for-one: service dogs with respect to title II and title III, and essential eligibility requirements. As usual, the blog entry is divided into categories and they are: common sense comes to service dogs; common sense and essential eligibility requirements introduction; Coleman v. Zatechka facts; court’s reasoning as to why plaintiff was qualified/otherwise qualified; and takeaways. The reader is free to focus on any or all of the categories.

I

Common Sense Comes to Service Dogs

On Friday of last week, a group of people with the Association of Higher Education and Disability were in town to do training. I have been a member of that group for several years now. The group focuses on helping people in disability services at colleges and universities be the best they can be. At that meeting were: Paul Grossman, Esq., an attorney with over 40 years of experience with the Office of Civil Rights of the US Department of Education now retired from OCR and now on his own; Jamie Axelrod, current president of AHEAD and head of Disability Services for the University of Northern Arizona; L. Scott Lissner, past president of AHEAD and head of Disability Services for The Ohio State University; Mary Lee Vance, Interim Director of Disability Services at Orange Coast College and past board member of AHEAD. Naturally, we got on the topic of service dogs. The people around the table without exception took the position that follow-up questions are permitted when it comes to ascertaining whether a dog is a service animal under title II and title III of the ADA when the disability is not obvious. Since there is nothing in the regulations suggesting follow-up questions are allowed, the question became what reasoning supports such a view. The answer made a lot of sense. That is, title II and §504 of the Rehabilitation Act by case law require an interactive process. Accordingly, dismissing a dog out of hand when the answers are not clear means you are not engaging in the interactive process. So, narrowly focused follow-up questions make sure that the requested accommodation is being denied properly after engaging in the interactive process.

Also, from a preventive law point of view, this approach makes a great deal of sense. It shows the person with a disability that the entity is trying to work with the individual to respect their needs and at the same time comply with the law. So, if after the narrowly focused follow-up questions, the animal winds up being a service animal, then everyone wins. If after those questions, the animal is not a service animal, then you have justifiably denied the animal, and most people will walk away with the notion that they have been treated fairly even if it didn’t work out for them. Note, if it is an emotional support animal rather than a service animal, then it still may be possible to have that animal on campus under the Fair Housing Act and under §504 of the Rehabilitation Act.

Finally, there was some talk around the table as to whether §504 mandates allowing emotional support animals in places other than the dormitories. Apparently, the §504 regulators have intimated as much, though nothing formal exists. It is hard to believe with all the blowback with emotional support animals of late, anything formal to that effect would be coming online soon. I also don’t see how such a view is consistent with the title II and title III DOJ regulations.

II

Common Sense and Essential Eligibility Requirements Introduction

AHEAD also has some great listservs. On one of those, the question came up as to whether a person with a disability could insist on having a roommate in the same way as any other college student without a disability could have. When I saw that, I responded with this: 42 U.S.C. §12182(b)(1)(A)(ii) provides:

“It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”

III

Coleman v. Zatechka Facts

Another individual on the listserv posted Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993).

The plaintiff was a 21-year-old student attending the University of Nebraska Lincoln and had cerebral palsy. She needed a personal attendant to assist her with dressing, showering, and toileting. Since she wanted a roommate to get the most out of the college experience, she completed and submitted the residence housing contract application indicating that she wanted a double room in a certain dormitory and preferred a non-smoking roommate. When she requested a double room and did not specify a particular roommate, she expected that her name would be placed in the pool of roommate candidates, and then she would be randomly assigned a roommate by the University Nebraska Lincoln housing department per their usual procedure. The Residence Hall Handbook said that roommate assignments would not be made on the basis of handicap (remember, this was 1991). Finally, she was admitted to the University, and there was no dispute that since she completed and submitted the residence housing contract application requesting a double room, she met all the requirements necessary to be randomly assigned a roommate.

It turns out that University Nebraska Lincoln had a policy saying that students with disabilities or special medical considerations needing personal attendant service, nursing care, or trained animal assistance would not get a roommate absent a mutual room request. The policy was a blanket policy with no individualized inquiry made when a student with a disability requested a roommate. That is, no individualized inquiries were made with respect to the extent of the student’s disability, the dimension of any equipment necessitated by the disability, or the number, duration and nature of any necessary personal attendant visits.

The University then did all kinds of things to try and get someone to be the student’s roommate. None of them worked. The University also repeatedly told plaintiff that she was free to have a roommate, but that it would not require another student to be her roommate. So, plaintiff originally filed a complaint with the United States Department of Education Office of Civil Rights and then withdrew it in favor of filing the lawsuit.

IV

Court’s Reasoning As to Why Plaintiff Was Qualified

  1. The only academic requirement for participation in the roommate assignment program is admission to the University.
  2. The only nonacademic criteria essential for participation in the roommate assignment program is submission of a completed residence hall contract application requesting a double room and not specifying a particular roommate.
  3. The defenses raised by the University are subject to the ADA’s screen out provisions, which can be found at 28 C.F.R. §35.130(b)(8).
  4. Defendant’s argument that plaintiff uses more than an equal amount of space in a double room than a student without a disability doesn’t wash because: 1) no individualized inquiry was conducted to determine the amount, size, or location of the equipment used by the plaintiff, rather the defendant simply made an assumption. The ADA prohibits using assumptions rather than facts and conclusions made from an individualized inquiry; 2) defendant’s challenged policy allowed students in wheelchairs to have roommates so long that they did not require attendant care or a trained animal. Accordingly, the wheelchair utilizing too much physical space argument simply doesn’t make any sense; and 3) the concern about the utilization of physical space is not a concern applied to students without disabilities. Accordingly, the equal amount of space is not necessary to the roommate assignment program and was not an essential eligibility requirement that a student must meet in order to be qualified to participate in the program.
  5. Defendant’s argument that plaintiff cannot receive frequent daily visitors that might disrupt a roommate’s solitude doesn’t wash because: 1) plaintiff’s personal attendant visits are not unusually disruptive. Two of the three daily visits are relatively brief with a good portion of those visits involving the personal attendant and the plaintiff not even being in the dormitory room. Also, the daily visits are scheduled, predictable, and amount to nothing more than assisting plaintiff in the daily routine of dressing, showering, and toileting, which is something all roommate do. No medical care is provided during the visits and no evidence existed as to why the roommate could not remain in the room during the entire visit if she wished; 2) any such disruptions are common disruptions present in all roommate situations regardless of whether roommate has a disability. It isn’t unusual for roommate to awaken or retire at different times due to class schedules or personal preference. Further, the nature of dormitory living requires roommates needing to be tolerant of each other’s sleeping habits and accept the fact they are not always operating on identical schedules; 3) roommates regardless of disabilities are required to tolerate frequent visitors. That is, frequent daily visit do not uniformly disqualify students without disabilities from participation in the roommate assignment program and they should not disqualify a plaintiff with a disability from participation in the roommate assignment program; 4) plaintiff has some degree of flexibility as to when and where the attendant care visits take place. For example, she was willing to modify the times her personal attendant arrived so her roommate was less likely to be disturbed by the visit. Accordingly, disruption of solitude cannot properly be considered an essential eligibility requirement that a student must meet in order to participate in the roommate program.
  6. If defendant’s essential eligibility requirements arguments were actually intended to screen out undesirable roommate candidates using too much space or having frequent daily visitors, one would expect to see those requirements apply to all students are asking for an assigned roommate, which is not the case. So, the additional requirements are not essential to the roommate assignment program. Instead, they are nothing more than an attempt to legitimize a policy of excluding students with disabilities from the roommate assignment program.
  7. A blanket policy of excluding certain persons with disabilities from the roommate program violates both the Rehabilitation Act and the ADA.
  8. While a school might have a policy allowing students with disabilities to live in single rooms because of being uncomfortable with an assigned room due to attendant care visits, nothing in the Rehabilitation Act or the ADA requires a plaintiff to accept such accommodations. Further, even where accommodations have been made, qualified individuals with disabilities have to be given the option to participate in regular programs if they choose. That is, separate program designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in integrated activities. See this case for example. That is, plaintiff cannot be required to accept such accommodation simply because they exist. Rather, she has to be given the option of participating in the regular roommate assignment program if she so desires.
  9. Not requiring students without disabilities to room with students with disabilities fosters the very attitudes and stereotypes about persons with disabilities that the ADA is designed to eliminate. In other words, that policy lends support to the idea that students with disabilities are less desirable and that it is okay that others not be required to live with them, which then places less value on the human worth of individuals with disabilities because of their disabilities. It also violate the ADA’s purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  10. In footnote 15 of the opinion, the court noted that since the Rehabilitation Act applies to all operations of a college, university, or postsecondary institution, the University’s practice of randomly assigning roommate to students requesting double rooms was a program or activity within the meaning of the Rehabilitation Act.

V

Takeaways:

  1. I am persuaded that narrow follow-up questions to whether an animal is a service animal are permissible. However, the questions have to be narrowly focused. It really isn’t all that different than requesting narrowly focused information to establish that an employee has a disability under title I of the ADA. The advantage of the narrowly focused approach is that it gives everyone the opportunity to definitively assess whether the animal is a service animal. It also makes it easier for businesses to properly assess whether the animal is a service animal as asking only those two questions without follow-up will not get you a lot of information. So, how would that play out in practice? Let’s say someone shows up with an animal and does not have an obvious disability. You ask the standard two questions. The person responds that, “the animal is necessary because of a disability and that the animal keeps him calm.” The reply to that question is a pass as to the first, but a fail as to the second. So, a follow-up question could be something like, “what work or task has the animal been trained to do that keeps you calm?” It doesn’t have to be that particular question, but the point is that the question is a narrowly focused follow-up question.
  2. Coleman has been cited favorably over the years. What is refreshing about the decision, is that it uses a lot of common sense about the college environment to assess essential eligibility requirements.
  3. Coleman also stresses the importance of paying attention to title II’s final implementing regulations screen out provisions.
  4. Setting up a separate program for persons with disabilities may or may not run afoul of the screen out provisions. Even so, if a person wants to participate in the same program as students without disabilities, then that needs to happen unless you can show an undue burden or a fundamental alteration. I suppose you could try to show that the student is not qualified/otherwise qualified as the defendant’s tried to do in this case, but that isn’t going to be easy to accomplish. It also raises the importance of knowing what your essential eligibility requirements are and making sure they don’t unnecessarily screen out persons with disabilities. See this blog entry for example.
  5. Graham Spanier was president of the University of Nebraska Lincoln at this time. He then moved on to Penn State…..
  6. Blanket policies are never a good idea. See this blog entry for example.
  7. The individualized inquiry is the heart of the ADA and the Rehabilitation Act.
  8. Inclusion efforts must include persons with disabilities.
  9. What about therapy animals? Are they service animals or emotional support animals? Well, it may be neither. However, for purposes of deciding whether the therapy animal can go anywhere a service animal can go, it would have to be determined whether it is a service animal. So, the answer is depends. Therapy animals do get training, but are they engaged in recognition and response? If so, then the therapy animal is a service animal. Also, remember that service dogs can be situational. For example, my dog is a service dog, but only in the house.

Can DOJ Enforce Title II of the ADA Redux

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Previously, we discussed in this blog entry a case out of the Southern District of Florida holding that DOJ had no authority to enforce on its own title II of the ADA. That decision laid out the case against DOJ having independent title II enforcement. However, I thought it would be interesting to discuss the other side. That is, what are the arguments saying that DOJ has independent title II enforcement powers? Dudek was appealed to the 11th Circuit and took on a different name, A.R. v. Sec., Florida Agency for Healthcare Administration. On March 1, 2018, the Department of Justice filed its reply brief where it argued that DOJ does indeed have independent title II enforcement powers. Also of note, is that the entire disability community, regardless of disabilities, has filed amicus briefs supporting the Department of Justice position. The DOJ reply brief can be found here. As usual, the blog entry is divided into categories, and they are DOJ arguments and thoughts. I can’t imagine the reader wouldn’t focus on both categories, but certainly the reader will want to choose reading the DOJ arguments for sure.

I

DOJ Arguments

  1. The United States has vigorously enforced title II of the ADA in order to prevent and remedy discrimination by State and local governments since 1992.
  2. There are more than 50 years of judicial decisions and administrative interpretations and practice construing title VI of the Civil Rights Act and the Rehabilitation Act as authorizing the federal government to sue violators when voluntary compliance cannot be achieved.
  3. 42 U.S.C. §12133 has substantially identical wording to §505(a)(2) of the Rehabilitation Act, 29 U.S.C. §794a(a)(2), which incorporate the remedies, procedures, and rights of title VI of the Civil Rights Act, 42 U.S.C. §2000d-1.
  4. The Atty. Gen. has long enforced title VI of the Civil Rights Act through lawsuits as an alternative to the more draconian course of terminating federal funding.
  5. Reading federal enforcement authority out of title II would give victims of disability discrimination in public services far less valuable remedies, procedures, and rights then victims have under title VI of the Civil Rights Act and under the Rehabilitation Act. That makes no sense since Congress directed that all three laws have the same enforcement systems.
  6. Title VI of the Civil Rights Act has two alternative federal enforcement mechanism-federal funding termination or a lawsuit by a federal agency. Before a federal agency can exercise either of those options, the agency must determine that compliance cannot be secured by voluntary means, and so, that is where the administrative enforcement process comes in.
  7. In 1977, HEW issued regulations implementing §504 of the Rehabilitation Act incorporating HEW’s title VI complaint and enforcement procedures. Accordingly, those regulations adopted an administrative enforcement process for the Rehabilitation Act that could culminate in a federal agency’s enforcement suit where it was unsuccessful in achieving voluntary compliance.
  8. In 1978, Congress added §505(a)(2) to the Rehabilitation Act, which incorporates title VI’s remedies, procedures, and rights. In enacting §505, Congress intended to make available to victims of disability discrimination the remedies, procedures, and rights of title VI, which includes an administrative enforcement process leading to federal agency enforcement action.
  9. Congress enacted the ADA to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities and to ensure that the federal government plays a central role in enforcing those standards. 42 U.S.C. §12101(b)(2)-(3).
  10. An integral purpose of title II of the ADA was to extend the reach of §504 of the Rehabilitation Act to make any public entity liable for prohibited acts of discrimination, regardless of funding source. Therefore, it makes no sense to construe title II of the ADA to create a feebler enforcement mechanism than what is available in the Rehabilitation Act and title VI of the Civil Rights Act.
  11. Federalism concerns raised by the state of Florida make no sense because the United States does not infringe on state sovereignty in the way suits by individuals do.
  12. Given the accepted interpretation of title VI and §504 at the time of the ADA’s enactment, Congress’s importation of the same remedies, procedures, and rights clearly means that federal enforcement is available under title II of the ADA.
  13. Legislative history of title II of the ADA shows clearly that Congress intended for the Atty. Gen. to file suit in federal district courts in the event that a federal agency is unable to resolve the complaint filed voluntary means.
  14. While it is true that draft legislation of title II was more explicit about DOJ’s enforcement possibilities, the changes that were made to title II were entirely clerical so that the first three titles of the ADA could be on the same page. That is, it is implausible that the House Judiciary Committee would have made a minor word change for the purpose of eliminating the authority that both the Senate Labor and Human Resources Committee and the House Education and Labor Committee explicitly intended the Atty. Gen. to have when it comes to enforcing title II of the ADA.
  15. The United States Supreme Court has acknowledged that a person alleging disability discrimination in violation of title II may seek to enforce a provision by commencing a private lawsuit or by filing a complaint with the federal agency. That administrative process would be seriously undermined if federal agencies had no power to enforce title II against public entities.
  16. DOJ has filed numerous brief with the Supreme Court over the years claiming authority to enforce title II and documenting therein extensive federal enforcement of title II dating back to the 1990s.
  17. DOJ has achieved numerous successes over the years in persuading state and local government enter into pre-suit settlement to resolve alleged title II violations.
  18. Without the possibility of a DOJ lawsuit as a backstop, state and local governmental entities have little incentive to come to the negotiating table and reach a voluntary resolution during the administrative process.
  19. Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacted a statute without change. By 2008; 1) the title II regulations had long provided that the Atty. Gen. has authority to file a lawsuit in the absence of voluntary compliance (28 C.F.R. §35.174); 2) the Atty. Gen. had acted on that authority by undertaking numerous enforcement activity under title II; and 3) courts had construed §12133 is providing the Atty. Gen. authority to enforce title II of the ADA. Therefore, in the absence of a clear expression of congressional intent to overturn the settled administrative and judicial interpretations, §12133 must be read as continuing to authorize the Atty. Gen. to sue under title II.
  20. Since the 1990s, federal agencies routinely secured individualized relief, whether it be monetary or equitable, for complaints through the title II administrative enforcement process in addition to obtaining systemic relief.
  21. As Congress knew well in 1990, courts have construed title VI of the Civil Rights Act as setting forth two alternative federal enforcement mechanism to compel compliance with the nondiscrimination requirements-termination of federal funding or a a lawsuit by the United States. Since title II applies to public entities that do not receive federal financial assistance, it necessarily follows that a federal lawsuit is something allowed by the incorporation of the remedies of the Rehabilitation Act into title II of the ADA.
  22. In enacting the ADA, Congress intended persons alleging discrimination under title II have the same remedies, procedures, and rights as victims under title VI of the Civil Rights Act and under the Rehabilitation Act. Without the prospect of a federal suit under title II, the administrative process for title II violations would be far less meaningful.
  23. In Barnes v. Gorman, which we mentioned here, the Supreme Court said that the remedies, procedures, and rights are the same under title II of the ADA, title VI of the Civil Rights Act, and the Rehabilitation Act.

II

Takeaways

  1. To my mind, it was far from certain that DOJ would take the side that it had the right to enforce title II of the ADA, and so, this is a pleasant surprise.
  2. Without federal agencies having the ability to enforce title II of the ADA through lawsuits, many people with disabilities are simply not going to be able to effectively take on governmental entities for disability discrimination as they will not be able to afford private attorneys (there aren’t many private attorneys doing plaintiff’s side title II work (the high standard for damages and the deep pockets of governmental and state agencies are a particular problem for getting an attorney to take on plaintiff title II cases), and protection and advocacy groups and nonprofits have varying capabilities and priorities.
  3. Several arguments made by DOJ I find particularly strong, including the arguments mentioned in ¶ ¶ 1, 2, 4, 5, 8, 9, 10, 12, 17, 18, 19, 20, 21, and 23.
  4. As far as I can tell, oral argument has not occurred in this case yet.
  5. Regardless of the 11th Circuit decision, this one is headed to the United States Supreme Court at some point. The only question is whether the Supreme Court will wait for a Circuit Court split. The 11th Circuit will be the first Circuit Court to directly address the question, which is likely to happen since strong arguments exist both ways.