§504

Association Discrimination and the ADA (Title I)

May 18, 2020 by William Goren Leave a Comment

Before getting started on the blog entry of the day, I did a webinar the other day for the Georgia Lawyers for the Arts on Internet accessibility and on effective communications. We also talked about other matters as well. It was the first time I did a webinar using the zoom platform. I found it worked well so long as I had the ability to dial in and use my Bluetooth so the sound could go directly to my hearing aids. One of the questions that came up was this: employer of less than 15 employees; in a state with no disability discrimination laws; and took the funds from the government to keep their business afloat. Does that company despite having less than 15 employees now have to worry about disability discrimination in employment? The answer I gave was yes because 29 U.S.C. §794, §504 of the Rehabilitation Act, applies to any entity receiving federal financial assistance. If same facts but state disability discrimination laws exist, then the company has to worry about §504 and possibly state disability discrimination laws as well.

I have promised a couple of times and have never followed up on it to blog on the case of Schmitz v. Alamance Burlington Board of Education a decision from February out of the Middle District of North Carolina. It does a great job of discussing associational discrimination. It also sets up a potential circuit court split with respect to the paradigm for evaluating these claims. As usual, the blog entry is divided into categories and they are: Key facts; court’s reasoning association discrimination generally; court’s reasoning adverse action/constructive discharge; court’s reasoning qualified; court’s reasoning reasonable inference of unlawful discrimination; court’s reasoning retaliation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Key Facts (Taken Directly from Opinion):

Theresa Schmitz (“Plaintiff”) is a resident of Wake County, North Carolina. (Compl. (Doc. 5) ¶ 3.) The Alamance-Burlington Board of Education (“Defendant”) is a corporate body solely based and operating in Alamance County, North Carolina. (Id. ¶ 4.)

Defendant hired Plaintiff in late October 2016 to teach fourth grade at an elementary school in Snow Camp, North Carolina. (Id. ¶ 6.) Plaintiff alleges that she performed satisfactorily throughout her first months, receiving positive feedback. (Id. ¶ 7.) In November 2016, her son was diagnosed with a brain tumor and required emergency surgery. (Id. ¶ 8.) Plaintiff alleges she returned to work on November 29, 2016, after her son’s surgery on November 23. (Id.) Plaintiff’s son was diagnosed with neurofibromatosis Type 1 (“NF1”), a disease also known as von Recklinghausen’s Disease. (Id. ¶ 9.) NF1 is a rare genetic disorder that causes tumors and growths in certain parts of the body; it negatively affected Plaintiff’s son’s ability to see, think, and learn. (Id.) Plaintiff’s son was unable to walk or care for himself following surgery. (Id.) Plaintiff’s son requires regular screenings and chemotherapy as a result of the disease. (Id.)

After returning to work on November 29, Plaintiff asked her Principal, Mark Gould, for permission to leave work at 2:30 p.m. each day to care for her son. (Id. ¶ 11.) Though classes ended at 2:30 p.m., teachers were expected to stay until 3:15 p.m. each day. (Id.) Principal Gould allowed Plaintiff to leave at 2:30 p.m. for one week, from November 29 until December 5. (Id.)

On or about December 5, Plaintiff took her son to the doctor to have his stitches removed; at that appointment, the doctor informed Plaintiff that her son would not be able to return to school for several weeks. (Id. ¶ 12.) Plaintiff emailed Principal Gould following that meeting, explaining the situation and asking for permission to leave at 2:30 p.m. for another week. (Id. ¶ 13.) Principal Gould responded that he could not talk about it at that moment because he was busy, but that he would discuss it with Plaintiff the next day. (Id.) Plaintiff never heard from Principal Gould, but she still left 2:30 p.m. the next day, December 6. (Id. ¶ 14.) Later that day, Principal Gould emailed Plaintiff to ask why she had not been at bus duty at 2:30 p.m. that day. (Id.) “Plaintiff replied that she had explained her situation with her son and thought it was okay to leave at 2:30 p.m. When she received no response back, she became very concerned.” (Id.) Plaintiff told Principal Gould that she would not be at work on December 7. (Id.)

On December 7, Plaintiff contacted Defendant’s human resources (“HR”) department to explain the situation with her son and to express concern that Principal Gould was “bullying her and retaliating against her for caring for her disabled son.” (Id. ¶ 15.) The HR department responded that day and told Plaintiff she was not permitted to leave at 2:30 p.m., but instead would have to take leave in half-day increments. (Id. ¶ 16.) Plaintiff alleges she asked HR why she could not work until 2:30 and have her pay prorated for the final forty-five minutes of the day, but she received no response. (Id.)

Plaintiff alleges that she was treated differently in this regard, because “other employees not associated with a disabled family member were regularly permitted to take sick leave in less-than-half-day increments on temporary bases.” (Id. ¶ 30.)^[1] Still, Plaintiff complied with HR’s instruction and took leave in half-day increments from December 5 until December 16. (Id. ¶ 16.) After December 16, 2016, Plaintiff alleges she did not request, nor did she take any other time off to care for her son. (Id.)

Plaintiff alleges that Principal Gould began a course of retaliation against her starting in mid-December 2016 and carrying into February 2017. (Id. ¶ 17.) This alleged retaliation, which Plaintiff characterizes as “nitpicking,” allegedly resulted in Plaintiff being held to a higher standard than other teachers. (Id. ¶ 18.) Plaintiff was placed on a performance improvement plan (“PIP”) on or about March 14, 2017. (Id. ¶ 20.) Plaintiff alleges this PIP entailed a lot of busy work, was based on misstated facts about her performance, and was another example of how she was held to a higher standard than other teachers. (Id. ¶¶ 20-21.)

Despite those positive developments, on May 12, 2017, Plaintiff was called into a meeting with Principal Gould and HR. (Id. ¶ 23.) Waiting for her in the meeting was a pre-drafted letter of resignation for her to sign, effective at the end of the school year. (Id.) Plaintiff was told to sign the letter, or she would be “put on a list she did not want to be on.” (Id.) Plaintiff alleges this list was “presumably a list of terminated employees or employees who were not eligible for hire” within North Carolina’s school systems. (Id.) Plaintiff was told she had to sign and “turn in” the letter. (Id.) Plaintiff does not expressly allege that she signed the letter, but she does allege that she was “forced to resign,” (id. ¶ 30), and that she was “constructively terminated,” (id. ¶ 24).

Plaintiff alleges she was retaliated against in the form of changes to her schedule and responsibilities, being placed on a PIP, being forced to resign, and other, smaller acts. (Id. ¶ 30.)

Plaintiff sued for association discrimination, retaliation, and violation of North Carolina law. The court winds up dismissing the North Carolina law claim but that does not concern us here.

Court’s Reasoning Association Discrimination Generally

A prima facie case for an associational discrimination means showing: (1) she was associated with an individual with a disability as defined by the ADA and that her employer had knowledge of that association; (2) she suffered an adverse employment action; (3) at the time of such action, she was performing her job at a level that met her employer’s legitimate expectations; and (4) the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
Pleadings are subject to Iqbal/Twombly. That said, plaintiff only has to plead facts that permit the court to reasonably infer that each element of the prima facie case is satisfied.
McDonnell Douglas burden shifting applies to associational discrimination and retaliation claims.
Association discrimination is, “because of.”
The reason for the association provision being added to the ADA was to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
With respect to employment, associational discrimination per 42 U.S.C. §12112(b)(4) means excluding or otherwise deny equal jobs or benefits to a qualified individual because of their association with a disabled person.
In a footnote, the court says that plaintiffs alleging associational discrimination claims need not fit their claim into one of Judge Posner’s categories, which we discussed in this blog entry.

III

Court’s Reasoning Adverse Action/Constructive Discharge

Adverse employment actions under the ADA use the same framework as title VII.
Constructive discharge is viable where either the employee’s resignation was obtained by the employer’s misrepresentation or deception or where the employee’s resignation was forced by the employer’s duress or coercion.
With respect to duress/coercion, it is a totality of circumstances test.
When assessing the voluntariness of a resignation, factors to look at include: 1) whether the employee was given some alternative to resignation; 2) whether the employee understood the nature of the choice he or she was given; 3) whether the employee was given a reasonable time and when to choose to resign; and 4) whether the employee was permitted to select the effective date of resignation.
If an employee can show that the employer knew that the reason for the threatened removal could not be substantiated, the threatened action by the employer is purely coercive.
While plaintiff failed to plausibly allege that she did not have an option other than resignation, she did plausibly allege facts allowing the court to reasonably infer the employer lacked a good faith basis for threatening her with termination in the first place. For example, she successfully completed her performance improvement plan and had received a positive performance review from the principal.
Plaintiff’s complaint permits a reasonable inference that the suggestion of a list that she would be put on if she did not resign was a threat of some undesirable consequences.
While plaintiff was given sufficient time to consider her resignation, she did allege facts showing that her resignation date was predetermined, which is a strong indicator of the lack of voluntariness.
The court was persuaded by the contrast between plaintiff’s allegations about her successful performance at the end of the school year and the allegedly abrupt way she was forced to resign. So, the totality of circumstances test combined with the facts alleged are sufficient to get by a motion to dismiss.

Court’s Reasoning Qualified

To be protected under the ADA, a person with a disability must also be qualified.
Plaintiff brought forward enough facts showing she was meeting defendant’s expectations. In particular: 1) plaintiff was a teacher and did miss class time to care for her son, but those instances allegedly ceased in December 2016, and it appeared the absences were approved leave; 2) between the time of absenteeism and when she was shown her pre-drafted resignation, plaintiff alleges she was performing satisfactorily. Those allegations are supported by the performance report written by the principal at some point during April 2017, which did not indicate any deficiencies nor did it indicate that she was not qualified to do the job.

Court’s Reasoning Reasonable Inference of Unlawful Discrimination

Plaintiff has to show that it is more likely than not that the employer took the adverse action because of her association with an individual with a disability.
“Because of,” language associated with association discrimination and retaliation in the statute means causation is, “but for.”
Where a plaintiff is performing her job satisfactorily and her only issues with her employer revolve around her association with the person with a disability, then that raises an inference of discriminatory motivation.
Plaintiff alleged discriminatory intent sufficient to get by a motion to dismiss in numerous ways: 1) she was performing her job well in October and November of 2016; 2) defendant’s only alleged displeasure with the plaintiff involved her time off to care for her son with a disability in late 2016 early 2017; 3) after December 2016, defendant allegedly began to treat plaintiff differently; and 4) after those incidents involving her son with a disability, plaintiff was again performing her job well. Accordingly, plaintiff alleged sufficient facts to show that her association with her son was more likely than not the motivating factor for defendant’s actions.
Even though there was some period of time between the defendant’s notice of plaintiff’s association with her son with a disability and her termination, a period of six months, the totality of the circumstances is such that there still exist the necessary minimal inference of discriminatory intent (the court noted that the Seventh Circuit has found five months to not be too long of a gap).
A period of time that is otherwise long does not negate causation if the adverse action comes at the first opportunity to retaliate.
If a period of time between notice about an association with the person with the disability and the discriminatory act is filled with other acts illustrating discriminatory animus, then causation can still be established. Particularly noteworthy, is that the defendant knew plaintiff was associating with a family member with a persistent condition requiring more care and that the defendant was also aware of the chronic nature of plaintiff’s son’s disease. Plaintiff also alleged evidence of discriminatory intent between the time defendant became aware of plaintiff’s association and her forced resignation. Those actions included: 1) holding plaintiff to a higher standard than other teachers; 2) reprimanding her for allegedly routine matters; and 3) placing her on a performance improvement plan starting in mid-March.
While the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a person with disability, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.

Court’s Reasoning Retaliation

Proving up a retaliation claim means showing: 1) plaintiff engaged in protected conduct; 2) plaintiff suffered an adverse action; and 3) a causal link exists between the protected conduct and the adverse action.
Plaintiff need not show that the conduct being opposed was actually an ADA violation. Instead, plaintiff must show a good faith belief the conduct violated the ADA. That good faith belief has to be objectively reasonable.
A reasonable and good faith belief is only required for opposition activity. If a person is involved in the EEOC process and retaliation occurs, a reasonable and good faith belief showing is not necessary.
The law is crystal clear that a person alleging associational discrimination is not entitled to reasonable accommodations. Accordingly, it is not reasonable to assume that a plaintiff had a good faith belief that such a request was protected under the ADA. Accordingly, dismissal of the retaliation claim is warranted.

VII

Thoughts/Takeaways

Iqbal/Twombly means giving the defendant enough facts so that it is clear as to what is being alleged and what the claims are. Depending upon the jurisdiction, judges may allow a degree of notice pleadings, but it is very specific to the individual judge. So, on the plaintiff side, more facts are better than less.
It’s interesting that even though causation for retaliation and associational discrimination claims is “but for,” McDonnell Douglas is still in play.
The court’s footnote talking about how associational discrimination claim do not have to fit into one of the boxes we discussed in this blog entry sets up a potential circuit court split.
Duress and coercion when it comes to figuring out constructive discharge is a totality of the circumstances test.
Just because there is a length of time between notice about an individual’s association with a person with a disability and the ultimate discriminatory act, that is not the end of the matter where other acts illustrating discriminatory intent exists.
Objective reasonableness when it comes to retaliation does mean not being ignorant of the law. In other words, it makes perfect sense to me that a person would think it is perfectly reasonable and within the ADA to request accommodations because they are associating with a person with disability. However, the law is quite clear that is not the situation. Accordingly, regardless of a plaintiff believing that, that belief does not hold up for retaliation claim. All this said, many courts are holding a failure to accommodate a person’s request for a reasonable accommodation to deal with their association with the person with a disability can be evidence of discriminatory intent. So, in this situation, the interactive process or lack thereof is critical.
“Disabled,” v. “person with a disability.” The medical community, many courts, and some disability rights activists use the term, “disabled.” However, a significant group of people in the disability rights arena, and it does not depend upon age, prefer people first language, i.e. “person with a disability.” Since it is an individual preference, when speaking generally always start with people first language and then switch over to identity first, “disabled,” if the person with a disability prefers it that way.

Indian Tribe Sovereign Immunity and the ADA

January 15, 2020 by William Goren Leave a Comment

Today’s blog entry takes on the question of what happens if a person with a disability decides they want to have a fun time at an Indian owned casino. However, the Indian owned casino does not accommodate their disability. Can the person with the disability go after the Indian owned casino?

The case of the day is Drake v. Salt River Pima-Maricopa Indian Community decided by Judge Liburdi of the District Court in Arizona on October 31, 2019. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff has PTSD, severe anxiety, and suffers from panic attacks. Her service dog helps her deal with those conditions. She went with her service dog to the Community Talking Stick Casino and Resort in 2019. Once arriving at the resort, the resort’s employee told her that the service dog had to go even when she had a companion try to retrieve her bag to provide the service dog’s service credentials to casino staff. As a result, plaintiff suffered a panic attack. She brought suit alleging violation of title III of the ADA as well as state suits for intentional and negligent infliction of emotional distress. The casino defended on sovereign immunity grounds.

Court’s Reasoning

Federal laws do not apply to Indian tribes: 1) when applying the law would interfere with internal matters of tribal self-governance; 2) when applying the law would run afoul of rights a treaty guarantees the tribe; or 3) when legislative history or other indicators show Congress did not intend for the law to apply to tribes operating within the territorial boundaries.
The court relied heavily on a 1999 11th Circuit case, Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11^th 1999), here.
Parties agreed that the self-governance exception does not apply and no treaty was applicable. So, the only question was a matter of congressional intent. Relying on the 11^th circuit case, the ADA has to be liberally construed to promote equal access. So, the third exception of general applicability does not apply either.
Native American tribes enjoy sovereign immunity as a necessary corollary to Indian sovereignty and self-governance. That immunity respects their unique status as domestic dependent nations with inherent sovereign authority of their members and territories.
Since Congress holds immunity in trust for the tribes, they can abrogate tribal immunity if they expressly do so. However, courts will not infer congressional abrogation of sovereign immunity absent clear congressional intent.
When a tribal defendant raises sovereign immunity, the burden of demonstrating the immunity does not apply falls on the plaintiff. A plaintiff can satisfy that burden by showing either that the tribe has waived its immunity or that Congress abrogated that immunity with respect to the particular cause of action involved.
Sovereign immunity for tribes is not coextensive with sovereign immunity for the respective States. That is, just because Congress abrogates sovereign immunity for the States, that does not mean that they automatically abrogate tribal sovereign immunity.
A basic Canon of statutory construction is that expression of one type of immunity excludes those which Congress does not list. So, that Congress did not clearly waive tribal immunity but did so with respect to state sovereign immunity, shows that tribal immunity should remain intact.
Indian tribes do not lose their sovereign immunity when they engage in commercial enterprises.
For the same reasons, plaintiff’s state law claims are also barred by sovereign immunity.

III

Thoughts/Takeaways

The case relies heavily on the 11^th Circuit decision in Florida Paraplegic Association, Inc. v. Miccosukee Tribe of Indians of Florida, here.
What is interesting about Indian tribe sovereign immunity, is that as far as I can tell, sovereign immunity, unlike sovereign immunity in general, applies across the board. That is, even a suit for injunctive relief against an Indian tribe seems to be prohibited. After all, title III of the ADA does not allow for damages.
You have to look at the 11^th Circuit decision to figure out where would a plaintiff turn to when an Indian tribe casino violates their rights under the ADA. The 11^th Circuit tells us that Congress created an alternative method of enforcement. That is, the U.S. Atty. Gen. can bring a civil action to compel compliance with the ADA. More specifically, title III authorizes the Atty. Gen. to bring suit against any person or group of persons engaged in a pattern or practice of discrimination. Title III of the ADA most certainly applies to Indian tribes. Further, tribal sovereign immunity does not bar suits by the United States. So, the Atty. Gen. can pursue an action against Indian tribes failing to comply with title III just as it can enforce the act against any other entity violating the statute.
In a way, the option facing a person with a disability discriminated against by an Indian tribe in violation of the ADA is essentially the same as the option faced by a person with a disability with respect to the Air Carrier Access Act. That is, the only option for vindicating a person with a disability rights in either case is to file a claim with the appropriate federal agency, in this case the Department of Justice. Under title III of the ADA, the DOJ also has the authority to levy civil fines and to seek damages for the individual plaintiff.
I see no record of any appeal filed.
Many cases hold that the taking of federal funds waive sovereign immunity under §504 of the Rehabilitation Act. So, if a plaintiff can show the casino takes federal funds, they may be able to have an individual claim for violating §504 of the Rehabilitation Act, 29 U.S.C. §794.
Remember, causation under §504 of the Rehabilitation Act, “solely by reason of,” is different than causation under title III of the ADA, “on the basis of.” This difference in causation, which many but not all courts assume as true, may come into further clarity as the result of a federal Age Discrimination in Employment Act case (Babb), that the Supreme Court is hearing today, January 15, 2020.
Taking the facts as true, there is no dispute that ADA violations occurred when the casino asked the plaintiff to leave the casino with her service dog and even refused to look at documentation.
Filing with DOJ has to be done within six months of the claim arising unless you can get a waiver.

DOJ can enforce title II of the ADA for now

September 20, 2019 by William Goren 1 Comment

Next week, my daughter is on break. She has one of those schedules where they are on for six weeks and then off for one week. They do get two weeks for winter vacation. So, since my schedule is likely to be all over the place next week, I thought I would do another blog this week since the 11^th Circuit came down with a very important decision on September 17, 2019. Previously, we have blogged twice on the case, here. The case involved the question of whether the Department of Justice has any authority to enforce title II of the ADA. In a 2-1 decision a panel of the 11^th Circuit says that it does. The person writing the decision (published), Judge Boggs, was sitting by designation from the Sixth Circuit. So, the actual judges on the 11^th Circuit split1-1. That leads one to wonder whether Florida will not petition for an en banc rehearing and may very well get it. The actual decision is 66 pages long, but it can be condensed considerably for our purposes. The facts aren’t really important as what was at issue is whether DOJ has the ability to enforce title II of the ADA through a court action. As usual, the blog entry is divided into categories and they are: what it comes down to; title VI of the Civil Rights Act; §504 of the Rehabilitation Act; title II of the ADA; dissent by Judge Branch; and takeaways. Of course, the reader is free to focus on any or all of the categories.

What It All Comes down to

The entire case turns upon how 29 U.S.C. §794a(a)(2) gets interpreted. More specifically, that statute provides: “the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.) (and in subsection (e)(3) of §706 of such act (42 U.S.C. 2000e-5), apply to claims of discrimination in compensation) shall be available to any person (emphasis mine), aggrieved by any act or failure to act by any recipient of federal assistance or federal provider of such assistance under §794 of this title.
The reason it comes down to the interpretation of the above paragraph is that through a series of interlocking cross-references starting with 42 U.S.C. §12133 remedies for violating title II of the ADA are linked to the remedies section for violating §504 of the Rehabilitation Act, which in turn links to title VI remedies of the Civil Rights Act.

Title VI of the Civil Rights Act

The remedies for violating §504 of the Rehabilitation Act are tied into title VI of the Civil Rights Act.
Where there is a violation of title VI of the Civil Rights Act, agencies enforcing the prohibition on discrimination can either terminate funding to the particular program violating the regulation or can take action by any other means authorized by law.
Those feeling they have been subjected to discrimination in violation of title VI can file a written complaint. Upon receipt of that complaint, the Department is required to make a prompt investigation to determine whether recipient of federal funding has failed to comply with the antidiscrimination requirements. If that investigation demonstrates recipient is not in compliance, the Department must notify the recipient and attempt to resolve the matter by informal means if possible. Where informal means do not work, then the Department can take further action to induce compliance. Such action can include suspending, terminating, and refusing to grant or continue federal financial assistance, or “any other means authorized by law.”
Over time, “by any other means” has been characterized by the Department of Justice as including appropriate proceedings brought by the Department to enforce any rights of the United States under any law of the United States. That action cannot be taken until it has been determined that it cannot secure voluntary compliance, the Atty. Gen. has approved the action, and the noncomplying party had been notified of its failure to comply and the action to be taken.
28 C.F.R. §50.3 talks about alternative courses of action and specifically states that compliance with the nondiscrimination mandate of title VI may often be obtained more promptly by appropriate court action than by hearings and termination of assistance.
The phrase “any other means authorized by law,” shows that Congress intended to preserve other methods of enforcement, including the filing of suit. The court cites to various cases supporting that proposition.

III

§504 of the Rehabilitation Act

Congress amended the Rehabilitation Act in 1974. Legislative history from that amendment reveals that Congress intended §504, 29 U.S.C. §794, to lead to an implementation of a compliance program similar to title VI of the Civil Rights Act.
The Department of Health Education and Welfare procedures for carrying out the Rehabilitation Act were identical to those adopted by the DOJ in implementing title VI of the Civil Rights Act.
In 1978, the Department of Justice’s regulations for enforcement of §504 of the Rehabilitation Act became the same as those promulgated by the Department of Health Education and Welfare.
The enforcement scheme allows for both individual complaints and agency oversight leading to investigations ending with federal enforcement actions.
The United States has brought suit to ensure compliance with the Rehabilitation Act after the relevant agency has received the complaint and investigated.
Congress was fully aware of the administrative system when it passed the 1978 amendment to §504 and §505 of the Rehabilitation Act since those amendments codified existing administrative practice of using title VI procedures.

Title II of the ADA

Just because individuals have a private right of action, does not automatically lead to the conclusion that government enforcement is impermissible. Ensuring that public entities subject to federal statute comply with those statutes ultimately vindicates individual personal rights. However, that doesn’t mean Congress’s decision to enact the statutory scheme permitting governmental enforcement of title II should be ignored.
42 U.S.C. §12134(b) states that regulations implementing title II of the ADA have to be consistent and in coordination with regulation issued by the Department of Health, Education, and Welfare on January 13, 1978. This requirement leads to the conclusion that Congress intended the Atty. Gen.’s title II regulations to adopt Rehabilitation Act’s title VI type enforcement procedures because title II’s enforcement procedures use the Rehabilitation Act’s enforcement structure.
DOJ regulations implementing title II of the ADA set up an administrative scheme similar to the ones available for the Rehabilitation Act and title VI of the Civil Rights Act.
Congress expressly authorized the Atty. Gen. to make rules with the force of law interpreting and implementing title II of the ADA. Further, those regulations are reasonably related to the legislative purpose of the ADA and are consistent with the remedial structure Congress selected for title II. Accordingly, those regulations get deference as they are not arbitrary, capricious, or plainly contrary to the statute.
Congress chose to use §505(a)(2) the Rehabilitation Act as the enforcement mechanism for title II of the ADA with full knowledge those provisions established administrative enforcement and oversight in accordance with title VI. They also knew that by adopting that provision they incorporated title VI’s “any other means authorized by law,” provision.
If Congress intended to create a private right of action under title II as the only possibility for enforcement, then its decision to cross reference §505 of the Rehabilitation Act, 29 U.S.C. §794a, which expressly incorporates title VI, including its administrative enforcement scheme, would be mystifying, especially since Congress directed the Atty. Gen. to develop regulations consistent with the Rehabilitation Act enforcement procedures that included title VI enforcement.
When Congress enacted title II of the ADA, it drew upon two other statutes creating remedies, rights, and procedures available for enforcement with the full knowledge of those other statutes. Those other statutes were enforceable by federal agencies through funding termination or “any other means authorized by law.” Congress then told the Atty. Gen. to make regulations implementing title II of the ADA that were consistent with a set of regulations tracing directly back to the regulations implementing title VI of the Civil Rights Act. Congress was quite clear that title V the Rehabilitation Act and its accompanying regulations must be construed as the minimum standard for the ADA. Congress knew that both title VI and the Rehabilitation Act had been enforced through DOJ litigation when it enacted the ADA, especially since §12133 ultimately relates back to “any other means authorized by law.”
“Any other means authorized by law,” is a phrase courts have interpreted to permit referral to DOJ for further legal action.
Legislative history is not against having both a private right of action and with allowing DOJ to pursue enforcement actions.
Various courts have concluded that the Atty. Gen. has the power to enforce title II in federal court.
Unlike the Rehabilitation Act, the ADA is not spending clause legislation. Accordingly, there is a broad scope of potential federal enforcement under title II of the ADA.
Since title II enforcement provision cascades back to §602 of the Civil Rights Act authorizing the Atty. Gen. to enforce compliance of title VI of the Civil Rights Act by filing suit in federal court, the Atty. Gen. also can bring suit to enforce other statutes adhering to same enforcement scheme.
States are public entities under title II of the ADA and are explicitly subject to suit by the United States for violation of title II of the ADA.
States do not retain sovereign immunity from suits brought by the federal government.

Dissent by Judge Branch

The dissent is much more simple in its approach. Basically, what it says is that the section of 42 U.S.C. §12133 talking about the remedies being available to any person alleging discrimination means that the Atty. Gen. has no title II enforcement authority because “any person,” modifies the prior language talking about the remedies.
Everyone agrees that the Atty. Gen. is not a person for purposes of federal statutes.
Title I and title III explicitly references federal enforcement powers while title II of the ADA does not.

Takeaways

Basically, the difference between the majority opinion and the dissenting opinion is that the majority opinion believes the title II remedy section creates an either or situation by referring back to a bunch of statutes and then subsequently referencing “a person,” later on in that same section. On the other hand, the dissenting opinion believes the “to any person,” language modifies the remedy section referenced earlier on in that same statute.
The 11^th Circuit Judges split 1-1 on this decision. So, look for an en banc rehearing petition in order for the full 11^th Circuit to make a determination.
This decision has a huge impact on accessing governmental entities. For now, the DOJ has title II enforcement powers. I can tell you that I get contacted by so many different people that simply can’t afford a private attorney. Also, many plaintiff firms are in essence mom-and-pop shops. It can be very useful to bring in DOJ as leverage when taking on governmental entities, especially since the standard for getting damages under title II of the ADA, which we have discussed here, is higher than what you see under title I of the ADA.
I don’t know where the full 11^th Circuit goes with this case if they grant an en banc rehearing. As I have said several times before, the 11^th Circuit has become very progressive when it comes to the rights of people with disabilities. On a policy level, DOJ having title II enforcement authority makes a great deal of sense. However, the argument supporting that authority is a bit complicated and involves saying that a statute creates an either or situation. On the other hand, the dissenting argument is much more straightforward by saying “to any person,” modifies the rest of the statute. Also, in title I and title III, separate explicit statutory provisions exist for federal enforcement, which is not the case under title II.
If the 11^th Circuit grants a petition to rehear the case en banc, the time for the final decision will be down the road. Further, if the decision of the full 11^th Circuit, assuming it decides to hear the case, supports DOJ enforcement of title II, I would look for an appeal to the United States Supreme Court. That would mean that the 2020 elections would become critical because regardless of what the United States Supreme Court says (this one could go either way), a Democratic Congress could amend the ADA so as to specifically include DOJ enforcement authority in title II of the ADA. Even assuming Congress remains split between the parties, with a Democratic president, assuming that happens, and it may not, and a Democratic House, it is possible that the ADA could be amended that way. Everything I am reading says that a takeover of the Senate by Democrats is extremely unlikely, but one never knows. Ground Zero will be right here in Georgia with two Senate seats up due to the resignation of Senator Isaacson.
Maybe amending the ADA, especially if the Supreme Court decides in favor of DOJ title II enforcement, is a bad idea since HR 620, which we discussed here, would also get put in play.
I have said many times that the ADA does not provide for individual liability. However, as noted by the 11th Circuit in the decision we are discussing in this entry, that isn’t the case in the 11^th Circuit when it comes to retaliation as a result of this case.
We have discussed sovereign immunity many times, but this case makes the important point that States do not get sovereign immunity from suits brought by the federal government.
I wonder if DOJ will continue to advocate for it title II enforcement as this case proceeds or if it will switch sides. For those on the plaintiff side, it may be heartening to see that the Department of Education recently came up with a document supporting students with disabilities with respect to dual enrollment. Perhaps, that is a sign that the DOJ will stick to its position.