§504

How is Fry playing out in the lower courts?

May 15, 2017 By William Goren 1 Comment

In searching for a blog entry to do this week and striking out with my Lexis alert, I thought it might be interesting to see how Fry v. Napoleon Community Schools, discussed here, was playing out in the lower courts. When I did that, I came across the case of K.G. v. Bluff-Luton Community School District, decided by Judge Mark Bennett of the United States District Court for the Northern District of Iowa. If you ever have an opportunity to go to a CLE where he speaks, you will not be disappointed. He is extremely knowledgeable, funny, and says what is on his mind. As usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts

K.G. had an IEP, a functional behavior assessment, and a behavioral intervention plan (BIP). The latter stating that when behaviors escalated students would be removed and furniture would be repositioned to keep him and others safe. K.G. while in the second semester of first grade refused to cooperate when it came time to switch from drawing to writing sentences. The incident rapidly escalated from there. School personnel tried a variety of techniques to de-escalate the situation, all of which failed. At no time were the students in the classroom removed. Eventually, it got to the point where school personnel physically moved K.G. across the carpet to get him away from a desk. When they did that, K.G. said “ow, my back.” He was then taken to the school nurse and his father came to pick him up. His parents took photographs of his back either that evening or the next morning. They also took him to Mercy Medical Center where a medical professional said that the injuries were consistent with inflicted forceful dragging and consistent with partial thickness skin burn from excessive force in dragging the child on a carpeted surface. Also, it was that person’s opinion the injuries were significant and indicative of injuries beyond the normal care and discipline of a seven-year-old child. The parents offered expert opinions that K.G. now suffered from posttraumatic stress disorder and other psychological and behavioral issues as a result of the incident. Subsequently, they enrolled him in a different school district. They also brought proceedings under IDEA but abandoned them to pursue the following claims: violation of the fourth amendment and 14^th amendment for excessive use of force; violation of title II of the ADA; violation of §504 of the Rehabilitation Act; common-law general negligence; battery against one of the defendants; and intentional infliction of severe emotional distress against several defendants. The school district defended on the grounds IDEA was not properly exhausted. Plaintiff claimed exhaustion was not required under Fry v. Napoleon Community Schools.

Court’s Reasoning

A. Judge Bennett’s review of Fry

Judge Bennett turned to Justice Kagan’s opinion in Fry. In particular, Judge Bennett noted her admonition that exhaustion was not necessary where the substance of the complaint was something other than the denial of IDEA’s core guarantee of a free appropriate public education.
Judge Bennett notes that Justice Kagan also said that magic words are not the key, rather the substance of the complaint is the critical focus.
Judge Bennett then goes on to note the two hypothetical question that Justice Kagan asks in trying to figure out whether the situation involves a free appropriate public education or something else. In particular, the two situations are: 1) could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that wasn’t a school?; and 2) could an adult at the school, say an employee or a visitor, have pressed essentially the same grievance? If both questions are answered yes, then a free appropriate public education is probably not involved.
Judge Bennett goes on to note Justice Kagan’s reference to a third factor, the history of the proceedings (where the proceedings started). Did the plaintiff start with an IEP process or elsewhere? If the plaintiff started with the IEP process, a presumption is created that the suit is about a free appropriate public education.
Judge Bennett also references the concurring opinion where Justice Thomas and Justice Alito agreed with the majority except for clues section because they believed those clues will have the opposite effect of providing guidance and instead are likely to confuse and lead courts astray. Justice Thomas and Justice Alito believed the hypothetical questions only made sense if one assumes no overlap between the relief available under IDEA and other federal laws. Justice Alito and Justice Thomas were also particularly bothered by the presumption of a free appropriate public education where a person starts with the IDEA process and then switches. Justice Thomas and Justice Alito were also concerned that these clues would turn into bright line tests and that courts would refuse to undertake a careful examination of the substance of the complaint and use the clues instead.

Application of Fry to case

While the complaint does identify parties in terms of needing or supplying special education services and having a duty to ensure equal access to a public education, those references are not about the denial of a free appropriate public education. Instead, they are allegations giving notice to the defendant of the conditions putting K.G. at risk.
The IEP and the BIP are not the gravamen of the allegations of wrongfulness of the conduct in any of the six claims for relief in the complaint, and Judge Bennett goes through each of them: 1) allegations of force being contrary to his IEP and BIP are an indication of the unreasonableness of the use of force; 2) allegations of wrongfulness of one of the defendants is not that the IEP or the behavioral intervention plan was violated, but instead that the defendant acted with deliberate indifference because of inadequate training and supervision of faculty and staff in the use of force and restraints when seizing a student in special education; 3) the incident and prior incidents created a hostile educational environment in violation of title II of the ADA; 4) the allegations of negligence are all allegations unrelated and beyond the scope of a free appropriate public education; and 5) the common law claims of battery and intentional infliction of emotional distress are based upon allegations of threats or violence and physical injury and their outrageousness regardless of any requirement in the child’s IEP or BIP.
Judge Bennett then turned to Justice Kagan’s clues and said that the first clue came out in favor of the plaintiff in that a person could have brought the same claim for excessive and unreasonable use of force and discrimination if the conduct had occurred at a different public facility rather than the school. The second clue also comes out in favor of the plaintiff as an employee or visitor could have brought the same grievances.
The third factor, where the proceeding started, isn’t so clear as to which side it comes out on. Judge Bennett notes that the plaintiff started with the the IEP process but then abandoned it. He also notes all of the opinions in Fry mention that it is not unusual for parents to start an IEP process only to abandon it later for a variety of reasons. Accordingly, Judge Bennett notes Fry said it was important to consider whether the abandonment of the administrative proceeding was strategic or because of the realization the grievance had something to do with things other than a free appropriate public education. In Judge Bennett’s view, the claims of this case were independent of a free appropriate public education and therefore involved remedies not available under IDEA.
Having decided that exhaustion was not required, Judge Bennett then proceeded to address whether the defendants were entitled to summary judgment on the various claims. In particular, he winds up: denying defendant’s motion for summary judgment on the fourth amendment claim; granting defendant’s motion for summary judgment on the 14^th amendment claim based upon the facts and based upon qualified immunity; denying defendant’s motion for summary judgment on the ADA and §504 claims; denying summary judgment on the negligence claims; denying summary judgment on the battery claim; and granting summary judgment on the intentional infliction of emotional distress claim.

III

Takeaways:

Judge Bennett specifically notes this is a very close case and explicitly says that reasonable jurors could go either way.
Judge Bennett went on to say that he recognized that the circumstances of the case were very difficult and that teachers faced increasing challenges in terms of meeting their obligation to foster learning while keeping all students safe. He goes on to say that he does not envy the job of teachers who operate under such difficult circumstances. Nor does he envy the jurors who will try to figure out what the facts show in this case. It struck me that this kind of statement was a bit unusual coming from a judge. At least, it isn’t something I see a lot of when I read opinions.
I agree with Judge Bennett that Justice Kagan’s clues while well-meaning are problematic because of the tendency of this kind of thing coming from the United States Supreme Court to lead to bright line tests and, as noted by Judge Bennett, because it may well offer an easy way out for the court rather than have the court focus on the substance of the complaint in detail.
I also share Judge Bennett’s concerns about the presumption associated with where does the claim start (IEP process or the courts). The points he makes are valid. Also, IDEA is a terribly complex law and a parent often does not realize that overlapping laws with different standards and different remedies exist. If one looks to the substance of the complaint in detail, I am not sure why the presumption is even necessary. Finally, the other problem with the presumption is figuring out who has the burden of proof of overcoming that presumption. That is, is it up to the defendant, along the lines of an affirmative defense, to show that the presumption of starting with IDEA prevails or is it up to the plaintiff to have to rebut that presumption? The whole presumption thing and the clues create a big mess. Again, I know Justice Kagan was just trying to be helpful.
On the plaintiff’s side, where a child has an IEP, Fry puts a huge premium on really understanding how other disability discrimination laws are different and accomplish different things than IDEA. In that situation, the plaintiff’s attorney must use that knowledge to craft the complaint so as to enable the client to evade any exhaustion requirement of IDEA. Of course, Fry is a non-issue if the child has a §504 plan and not an IEP.
I think it is more helpful to think about exhaustion post Fry not in terms of relief but in terms of the substance of the particular law involved and what that law tries to accomplish.

Did You Know that an Exhaustion Requirement for Title II and §504 Exists? Me Neither…

May 2, 2017 By William Goren 1 Comment

I bet you didn’t know that in some circumstances title II and §504 may contain an exhaustion requirement. The reason I’m guessing you didn’t know is that until I saw this case, Sierra v. School Board of Broward County, 2017 U.S. Dist. LEXIS 62498 (S.D. Fla. April 20, 2017), it hadn’t occurred to me either. This week’s blog entry discusses this question in the entry is divided into the following categories: facts; court’s reasoning; City of Rancho Palos Verdes v. Abrams; application of City of Rancho Palos Verdes v. Abrams; and takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff alleged that the school board denied him, a deaf individual, access to their archived video for streaming on demand and live streaming of their school board meetings on the basis of his disability. Plaintiff, like myself, neither understands nor uses sign language. Therefore, he requires the use of auxiliary aids and services, such as closed captioning, in order to participate in and receive the benefit of the school board’s online videos. The school board provides a video streaming service through its online portal so that any person can watch its meetings in real time and listen to and participate in those legislative decision-making activities. However, as a result of plaintiff’s disability, he can’t observe and participate in those meetings because the streaming services do not provide any auxiliary aids or services for people with hearing disabilities who do not use sign language. In particular, the streaming service does not offer closed captioning. Plaintiff had the same problem with the school board’s social networking sites on Facebook and on Twitter. The meetings plaintiff wanted to participate in are also aired later via web streaming and on the district’s internal broadcast system. That same day, the meetings are also broadcast on a tape delay on WBEC-TV at 4 PM. The following morning, the televised broadcast is then archived online and made available for viewing on the school board’s website. The defendant defended on the grounds that the Telecommunications Act mandates that a plaintiff alleging disability discrimination in this situation must first go through the Federal Communications Commission (FCC), before being able to file a claim of disability discrimination under title II of the ADA or under §504 the Rehabilitation Act.

Court’s Reasoning

In holding that exhausting internal remedies with the FCC was required before filing suit under title II of the ADA or §504 of the Rehabilitation Act, the court reasoned as follows:

In 1996, Congress passed the Telecommunications Act in an effort to secure better access the video programming for the hearing impaired (it bears noting that in the disability rights community, the more sensitive term would be hard of hearing and not hearing impaired). That legislation directed the FCC to require closed captioning for video programming broadcast on television.
In 2010, Congress enacted the CVAA (21^st Century Communications and Video Accessibility Act of 2010), which amended the Telecommunications Act and directed the FCC to modify it regulations so as to impose closed captioning requirement for certain video programming available over the Internet.
Effective April 30, 2012, the FCC implemented new regulations imposing closed captioning requirements on all nonexempt full-length video programming delivered using Internet protocol if the programming is published or exhibited on television in the United States with captions. Further, those regulations set forth provisions talking about how any complaints regarding same need to be filed with the Federal Communications Commission, what needs to be in that complaint, the process that occurs once that complaint is filed, and a statement that the FCC is vested with the exclusive jurisdiction with respect to any such complaints. 47 C.F.R. §79.4.
The CVAA is Congress’s most recent and specific pronouncement regarding the duties of broadcasters to caption their programming.
Mandating that a plaintiff first file his claim with the FCC accomplishes Congress’s goal of allowing the FCC, which has expertise in this area, the opportunity to address the extent to which a broadcaster must provide close captioning.
By enacting the legislation, Congress called upon the FCC’s expertise and vested the FCC with exclusive jurisdiction to address any complaints involving a video programmer’s compliance with the CVAA’s administrative remedy for pursuing any claim under the ADA or §505 (§504 remedies provision), of the Rehabilitation Act.
The existence of an administrative complaint procedure under the CVAA is entirely consistent with a private right of action under the ADA for the same wrong.
All the court is doing is delaying plaintiff’s prosecution of the claims until such time as the plaintiff has exhausted his administrative remedies under the CVAA thereby providing the FTC an opportunity to address those complaints. Once that process is completed, plaintiff is free to refile claims as necessary. In this way, the CVAA’s intended purpose is accomplished while preserving plaintiff’s rights under the ADA and §505 the Rehabilitation Act.

III

City of Rancho Palos Verdes v. Abrams

Whether Sierra holds up is going to come down to how the courts interpret United States Supreme Court case of City of Rancho Palos Verdes v. Abrams. In that case, a person decided to erect all kinds of communication towers on his land and drew considerable grief from the city for doing so. In fact, things got so bad that he filed a §1983 cause of action against the City. It went all the way to the United States Supreme Court. That decision is critical to understanding whether the case we are discussing today will hold up. In particular, the United States Supreme Court said the following in holding that a §1983 action would not fly.

The critical question is whether Congress intended for the remedies in the Telecommunications Act of 1996 to coexist with an alternative remedy in a §1983 action.
Decisions saying that §1983 action are unavailable to remedy violations of federal statutory rights focus on the existence of a more restrictive remedy provided in the violated statute itself (emphasis added).
In all of the cases where the United States Supreme Court has held that §1983 is available for a violation of federal statute, it has emphasized that the statute (emphasis added), at issue did not provide a private judicial remedy or even, in many cases, a private administrative remedy for the rights violated.
Where §1983 remedies were held not to be available, the statute at issue themselves (emphasis added), provided for private judicial remedies thereby evidencing congressional intent to supplant §1983.
The ordinary inference that the remedy provided in the statute is exclusive can be overcome by express or implicit textual indication that the remedy complements rather than supplants §1983.

In a concurrence by Justice Breyer and Justice Stevens, they noted the following:

The statute’s text, structure, and history all provide convincing evidence that Congress intended the Telecommunications Act of 1996 with respect to the facts before it, operates as a comprehensive and exclusive remedial scheme. The statute’s structure appears fundamentally incompatible with the private remedy offered by §1983.
Since 1871, §1983 has stood as an independent safeguard against the deprivations of federal constitutional and statutory rights.
Only in an exceptional case, involving unusually comprehensive and exclusive statutory scheme, will the Supreme Court be likely to conclude that a given statute impliedly forecloses a §1983 remedy.
While the heavy burden was met in Sierra, there will be many instances where §1983 will be available even though Congress had not explicitly so provided in the text of the statute in question.
The majority opinion incorrectly assumes that legislative history of the statute is totally irrelevant. That assumption is contrary to nearly every case the Supreme Court had decided in this area of the law, all of which surveyed or at least acknowledged, the available legislative history or lack thereof.

Application of City of Rancho Palos Verdes v. Abrams

A strong argument can be created that applying City of Rancho Palos Verdes v. Abrams majority and concurring opinions leads to the conclusion that the CVAA does not set up a situation whereby exhaustion of FCC proceedings is required. The reasoning goes as follows:

47 U.S.C. §151, which establishes the Federal Communications Commission, doesn’t even have within it coverage of persons with disabilities. On the other hand, as we know, the ADA and the Rehabilitation Act are comprehensive schemes designed to redress disability discrimination throughout society and allow for integration of persons with disabilities into all aspects of society.
47 U.S.C. §152 says that the Act applies to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio originating or being received within the United States. This statute was last amended in 1993 just when the Internet was beginning to take off and certainly could not be intended to apply to the Sierra situation.
47 U.S.C. §613 mandates that the Federal Communications Commission come up with regulations dealing with close captioning and goes into elaborate detail as to the scope of those regulations. 47 U.S.C. §618 is the enforcement provisions. However, nothing in either statute talks about how the FCC has exclusive jurisdiction on such matters. The exclusive jurisdiction language, as far as I can tell after going through the Act, comes from the regulations at 47 C.F.R. §79.4(f) and not from the statute itself.
Since the exclusive jurisdiction language does not come from the statute itself, Chevron deference is not in order.
Since the exclusive jurisdiction language does not come from the statute itself, the CVAA per City of Rancho Palos Verdes does not require that claims under the ADA and §505 be exhausted through the FCC first.

Takeaways:

I definitely look for Sierra, or cases decided like it, to go all the way to the United States Supreme Court. The next stop is the 11^th Circuit, assuming an appeal. It will be interesting to see if a Circuit Court split develops. Cases like this have not reached the Circuit Court level yet.
A key person on this question, whenever it gets to the United States Supreme Court is going to be Justice Gorsuch. He is on record, as discussed here, as not being a fan of Chevron Also, as discussed in that blog entry, he is extremely literal about statutes. So, if the current makeup of the court stays the same on this particular issue, you may very well get a decision looking like 5-4 or considering the vibe from Fry and Endrew, 6-3 or even 7-2. Of course, this case is a long way from the United States Supreme Court and the makeup of the court may change before then. Keep in mind, plaintiffs with disabilities have fared very well at the United States Supreme Court in nonemployment matters, including prevailing three times this term.
For public entities not desirous of having their meetings streamed with close captioned, if they can get their meetings onto TV and get a court to buy off on Sierra, they can force a plaintiff to go through the FCC administrative process thereby delaying any ADA or Rehabilitation Act enforcement. Of course, that is a separate question from why a public entity would want to take this approach as dealing with the FCC would have to be a very expensive proposition.

ADA Compliance as a Delegable Duty: Did I really Say That?

April 28, 2017 By William Goren 1 Comment

It isn’t one of my most popular blog entries, but in my opinion, it is one of my most important. I am referring to the blog entry talking about the ADA as a nondelegable duty, which can be found here. On April 24, 2017, the U.S. Court of Appeals for the Ninth Circuit came down with a decision that calls into question whether the Nevada Supreme Court in Rolf Jensen got it right.

The case of the day is City of Los Angeles v. AECOM Services, Inc. decided by the United States Court of Appeals for the Ninth Circuit on April 24, 2017. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. Of course, the reader is free to concentrate on any or all of the categories.

Facts:

Two individuals with disabilities filed suit against the City of Los Angeles alleging that the City’s flyaway facility and service, a bus system providing transportation between Los Angeles International Airport and various locations, failed to meet accessibility standards set forth in title II of the ADA. The City subsequently filed a third-party complaint against AECOM Services and Tutor Perini Corporation. The complaint alleged that pursuant to the provisions of the contract entered into by the City and the company hired to design and construct the facility, that AECOM was obligated to defend, indemnify, and hold harmless the City against all suits, claims, losses, demand, and expenses to the extent that any such claims resulted from the negligent and/or intentional wrongful acts or omissions of AECOM, its subcontractors, officers, agents, servants, or employees. The City further alleged that Tutor, the successor in interest to another company retained by the City to construct the facility, was contractually obligated per the provisions of that contract to defend, indemnify, and hold harmless the City against all costs, liability, damage or expense sustained as a proximate result of the acts or omissions of Tutor or relating to acts or events pertaining to, or arising out of, the contract. The contract between the City and Tutor’s predecessor in interest also required that the contractor when performing its contractual obligations comply with all applicable present and/or future local, state and federal laws, statutes, ordinances, rules, regulation, restrictions and/or orders, including the ADA. It also stated that contractor shall be solely responsible for any and all damage caused, and/or penalties levied, as the result of the contractor’s noncompliance with such statutes, ordinances, rules, etc. The District Court threw out the case on the grounds the ADA preempted the indemnification claims (i.e. nondelegable duty essentially), and the City appealed.

Court’s Reasoning

In reversing and remanding the case for further proceedings, the Ninth Circuit reasoned as follows:

In determining whether federal law preempts state law, the first thing to look at is the purpose of Congress.
In all preemption cases, especially where Congress has legislated in a field where the States have traditionally occupied, the assumption is that the historic police powers of the States are not superseded by the federal act unless Congress clearly and manifestly says so.
There are several ways federal law may preempt state legislation, including: 1) Congress stating so in express terms; 2) inferring preemption when federal regulation in a particular field is so pervasive as to make the reasonable inference that Congress left no room for States to supplement it, what is called field preemption. That is, the volume and complexity of federal regulation demonstrates an implicit congressional intent to displace all state laws. For a discussion of field preemption, check out this blog entry; 3) implying preemption when state law actually conflicts with federal law, or what is called conflict preemption; and 4) obstacle preemption.
The presumption against preemption exists because respect for the States as independent sovereigns in our federal system leads to the assumption that Congress does not cavalierly preempt state law causes of action.
Neither title II of the ADA nor §504 of the Rehabilitation Act contains a statement of express preemption.
Field preemption doesn’t work because title II of the ADA specifically states that nothing in that chapter is to be construed to invalidate or limit the remedies, rights, and procedures of any State or political subdivision of any States or jurisdictions providing greater or equal protection for the rights of individuals with disabilities than afforded by title II of the ADA. Accordingly, the ADA expressly disavows field preemption of the disability rights field.
Obstacle preemption, which is a subset of conflict preemption, does not apply here either for a host of reasons: the City is not seeking to allocate the full risk of loss to someone else; the City only assigned liability to the defendants to the extent that the defendants own actions gave rise to liability; and the greater concern is for potential contractors to shield themselves from any liability they cause under both States contract law and federal disability regulations if preemption is found to exist.
Though the City is seeking indemnification for a contractor’s wrongdoing, that compensation only constitutes a portion of the City’s total liability under federal disability statutes. In other words, the relief sought may be complete indemnification from the perspective of the contractor’s liability, but it constitutes only partial contribution from the perspective of the City’s liability exposure.
Cities implement policies and procedures as part of their standard operation. Were a court to permit a city to contract away liability to implement policies and procedures complying with federal disability laws and regulations, it would impermissibly be permitting delegation of an entity’s duties under the ADA.
In this case, the City is seeking the redress for specific construction and design failure related to the facility. Cities often have no choice but to contract out designing and construction of public facilities because they do not have the expertise, personnel, or equipment necessary for such projects. Such a delegation is by necessity. Accordingly, an important component in a city doing all that it can to fulfill its duties under title II of the ADA and §504 the Rehabilitation Act is to require as part of its contracts with necessary third parties that the requirements of those statutes be met.
Permitting enforcement of contract claims seeking to hold the contractor liable for duties necessarily delegated to it, does not raise the problem of entirely insulating public entities from ongoing title II of the ADA or §504 of the Rehabilitation Act liability posed by offloading all of the City’s responsibilities under those laws.
If title II of the ADA is viewed as encompassing a public entity’s outputs, that supports the notion that Congress would not have intended to preempt claims for liability arising from tasks that a city does not do, but, in many cases, must instead contract with others to provide the service.
Permitting claims for contribution commensurate with a third party’s wrongdoing does not pose the same obstacle as offloading all of the responsibilities of the ADA onto someone else.
The presumption against preemption applies where a given area is one where the States have historically had the power to regulate, and in this situation, States have historically regulated in the area of civil rights, including the field of discrimination against persons with disabilities.
Obstacle preemption, which applies when a given state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, doesn’t work here either because nothing in title II of the ADA or §504 the Rehabilitation Act addresses a claim for state law indemnification or contribution claims filed by a public entity against a contractor.
Case law from other Circuits suggesting that congressional omission of a federal cause of action for indemnification is a reason to preempt state law claims, turns the presumption against preemption on its head. The basic premise of the presumption is that absent an affirmative indication to the contrary, a federal regulation does not preempt state law. The failure to provide a federal parallel to a state law cause of action doesn’t rise to that standard.
Certainly, it is a valid concern that a public entity could contract out of title II or §504 compliance with respect to the public entity’s failure to maintain appropriate policies and practices (failure to take action solely within its control). Permitting a shift of liability to a party lacking the power to remedy the violation would frustrate the federal statutes regulatory purposes. For example, the legislative history of the ADA confirms that a landlord has an independent obligation to comply with the ADA that may not be eliminated by contract.
The claims asserted by the City against the defendants in this case do not seek to shift liability for what the public entity can control onto somebody else.
The City’s third-party claims seek only to collect for violations arising out of defendants own negligence or wrongdoing. In other words, the City despite how it styled its claim, is in actuality seeking contribution from the defendants. Allowing such claims does not plausibly pose an obstacle to the intended purpose and effect of either the ADA or the Rehabilitation Act. In fact, a finding of preemption would hamper the statutes regulatory purposes. If there is no preemption, then the most a public entity can be able to do is to expressly contract for compliance and from there, the entity best situated to ensure full compliance may well be the contractor tasked with designing or constructing the public resource. If you preclude contract clauses for contributions, you then reduce a contractor’s incentives to ensure that the applicable statutes, laws, and regulations are complied with.

III

Takeaways:

Is this case really an overrule so to speak of our Mandalay Bay case? I’m not sure it entirely is for reasons that follow below.
The court was very careful to style this as a contribution case rather than an indemnification case. The difference is important because contribution implies shared responsibility while indemnification implies sole responsibility.
This case was a title II case and not a title III case. The difference is important because the range of responsibility for ADA compliance are far greater with respect to title II than they are with respect to title III.
The court did note that responsibilities of landlords cannot be delegated.
As mentioned above, if you are looking for where field preemption does work, check out this blog entry.
This case does allow for indemnification where that indemnity is the result of the contractor’s own negligence/screw up.
This case implies that failure of a contractor to understand the applicable ADA obligations necessary for a contractor to carry out their work may also be negligence. See also this blog entry.
The critical question is whether the liability exposure from the perspective of the entity contracting out services is indemnification or just partial contribution.
The court says that to permit a city to contract away liability to implement policies and procedures complying with federal disability regulations would impermissibly permit delegation of an entity’s duties under the ADA? Does that mean a public entity cannot contract out HR services or employee benefit services? Maybe. Certainly, means joint and several liability at a minimum.
To my mind, it is a strong argument to say that contractors are often the best situated to ensure full compliance with the designing or constructing of public resources and that if contribution was precluded, a disincentive for complying with the applicable statute, laws, and regulations is created.
The case seems to be strong in terms of its reasoning. With the current makeup of the Supreme Court and the nature of this case, I would think that the Ninth Circuit decision would be affirmed by the Supreme Court by at least a 6-3 majority. Unclear to me whether the Supreme Court would take the case in any event because there may not even be a conflict among the Circuits. For example, the Ninth Circuit went into elaborate detail as to why this case was different from the Fourth Circuit case.

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