Did you know that persons with disabilities are undefeated at the Supreme Court when it comes to title II and title III matters? It’s true.
Let us explore the ADA and ADA related cases that have been before the United States Supreme Court since the ADA went into effect. If I have this figured right, three cases are a split decision; five cases are wins for persons with disabilities when it comes to title I matters; seven cases are losers for persons with disabilities when it comes to title I matters; five cases are winners for persons with disabilities in title II matters with no losses; three cases are winners for persons with disabilities in title III matters with no losses; and two cases involving remedies are losers for persons with disabilities with a third being a split decision. Before we break it down, let me explain the categories for this blog entry and they are: employment cases; title II; title III; split decisions; remedies; why this exercise (a discussion of the two disability rights cases the Supreme Court just agreed to hear); and conclusions. As is usual, the reader is free to focus on any or all of the categories. Now, to break it down:
- Cleveland v. Policy Management Systems Corporation, 526 U.S. 795. A win for persons with disabilities with the court holding that an SSDI filing does not automatically prevent a person from filing an ADA claim later.
- S. Airways, Inc. v. Barnett, 535 U.S. 391. A loss for persons with disabilities with the court holding that a person with a disability did not have the right to bump a more senior person when a seniority system was present.
- Raytheon v. Hernandez, 540 U.S. 44. A loss for persons with disabilities with the court holding that a facially neutral policy applied in a uniform way can be used to escape ADA liability.
- Wright v. Universal Marine Service Corporation, 525 U.S. 70. A win for persons with disabilities with the court holding that there was no presumption of arbitrability with respect to ADA claims, and where an arbitration clause said that ADA claims would be subject to the clause, such a clause must be clear and unmistakable.
- Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356. A loss for persons with disabilities with the court holding that persons with disabilities when it comes to employment are in the rational basis class and therefore, sovereign immunity applied to title I suits against state entities.
- Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184. A loss for persons with disabilities with the court holding that a person was substantially limited in the major life activity of performing manual tasks if they were severely restricted or prevented from performing that major life activity. It also held that a major life activity was one of central importance to daily lives. Keep in mind, this decision was overruled by the amendments to the ADA.
- Albertson’s v. Kirkingburg, 527 U.S. 555. A loss for persons with disabilities. One of the three Sutton trilogy cases holding that mitigating measures must be factored into the calculus of whether a person has a disability. Keep in mind, this decision was overruled by the amendment to the ADA or not… (but see this blog entry).
- Sutton v. United Airlines, 527 U.S. 471. See paragraph 7 immediately above.
- EEOC v. Waffle House, 534 U.S. 279. A win for persons with disabilities saying that the EEOC had an independent right to bring a claim regardless of whether the plaintiff has signed an agreement to arbitrate.
- Murphy v. UPS, 527 U.S. 516. See paragraph 7 of this section.
- Clackamas Gastroenterology Associates PC v. Wells 538 U.S. 440. A win for persons with disabilities with the court holding that it depends upon the facts as to whether someone who may be a partner or owner of the business in name is actually an employee for purposes of the ADA.
- EEOC v. Abercrombie and Fitch 135 S. Ct. 2028. Not an ADA case at all but containing language favorable to persons with disabilities (see this blog entry).
- Tennessee v. Lane, 541 U.S. 509. A win of sorts for persons with disability with the court holding that sovereign immunity can be forcibly waived with respect to non-employment suits against state entities depending upon the facts of the case.
- Olmstead v. L.C. by Zimring, 527 U.S. 581. A huge win for persons with disabilities with the court holding that persons with disabilities have a right to be served within the community.
- S. v. Georgia, 546 U.S. 151. A win for persons with disabilities holding that a showing of constitutional violations waives sovereign immunity.
- Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206. A win for persons with disabilities with the court holding that the ADA applies to prisons.
- City and County of San Francisco v. Sheehan, 135 S. Ct. 1765. A win for persons with disabilities as it acknowledges that title II of the ADA applies to everything that a public entity does. It also remanded the case for ADA proceedings.
- Bragdon v. Abbott, 524 U.S. 624. A win for persons with disabilities holding that HIV positivity is a disability under the ADA and that a dentist had to serve such an individual absent a direct threat.
- PGA Tour v. Martin, 532 U.S. 661. A big win for persons with disabilities holding that the ADA applies to professional sports and containing lots of favorable language for persons with disabilities.
- Spector v. Norwegian Cruise Lines, 545 U.S. 119. A win for persons with disabilities with the court holding that foreign flag cruise ships were subject to the ADA within certain limits.
- Chevron v. Echazabal, 536 U.S. 73. A split decision because the court found in favor of the EEOC but against the person with a disability when it held that a direct threat defense applies to the self as well as to others.
- Barnes v. Gorman, 536 U.S. 181. A split decision with the court finding that compensatory damages against state entities are available under title II of the ADA and the Rehabilitation Act but not punitives.
- University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517. A split decision with the court holding that retaliation requires but for causation but containing very favorable language with respect to causation in non-retaliation ADA claims.
- CRST Van Expedited v. EEOC. A non-ADA case, but a loss for persons with disabilities with the court expanding the possibilities for a defendant to get attorneys fees.
- Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598. A loss for persons with disabilities with the court holding that prevailing party means a judgment on the merits or a consent decree and rejecting the catalyst theory.
Why This Exercise?
- Supremes agreed to hear two cases last week involving disability rights.
- The first case the Supreme Court decided to hear is the case of Fry v. Napoleon Community Schools, 788 F.3d 622 (6th 2015). In that case, the Sixth Circuit held that the IDEA exhaustion requirement had to be construed very broadly so as to preclude the plaintiffs from pursuing an ADA/Rehabilitation Act claim before IDEA exhaustion was completed. There was a vigorous dissent in that case. I have previously discussed this issue in this blog entry and in this blog entry. Whether this case is viewed as a win or a lose for persons with disabilities depending upon its decision, entirely depends upon what your view of IDEA is v. § 504/ADA. The two laws have very different philosophies and very different approaches to resolving differences.
- The second case is Ivy v. Williams, 781 F.3d 250 (5th 2015). This is an interesting case. I am not aware of a Circuit court split on this one.
- Facts in Ivy: In this case, in Texas, individuals under the age of 25 cannot obtain driver’s licenses unless they submit a driver education certificate to the Department of Public Safety. Driver education certificates are only available from private driver education schools licensed by the Texas Education Agency. The plaintiffs, all deaf, contacted a variety of Texas Education Agency licensed private driver education schools, all of which informed the named plaintiffs that the schools would not accommodate them. As a result, the plaintiffs cannot obtain driver education certificates and therefore, cannot obtain driver licenses. A deafness resource specialist with the Texas Department of Assistive and Rehabilitative Services informed the Texas Education Agency of the inability of the deaf individuals to receive driver education certificates. However the Texas Education Agency declined to intervene, stating that it would not required to enforce the ADA and that it would not act against the private driver education schools unless the United States Department of Justice found that the schools had violated the ADA. The deafness resource specialist filed a complaint against the Texas Education Agency with the Department of Justice, which the Department of Justice apparently dismissed. The plaintiff then filed a lawsuit in federal district court against the Texas Education Agency and a private driver education school requesting injunctive and declaratory relief against both parties under title II of the ADA and the Rehabilitation Act. Interestingly enough, the driver education schools themselves were not sued for violating title III of the ADA. All of the judges on the panel agreed that the plaintiffs had standing, but disagreed on the merits.
- Majority Reasoning:
- Driver education is not a service, program, or activity of the Texas Education Agency because: 1) the Texas Education Agency does not teach driver education, contract with driver education schools, or issue driver education certificate to individual students. Rather, it licenses and regulates private driver education schools, which in turn teach driver education and issue the certificates. So, the Texas Education Agency’s program provide the licensure and regulation of driver education schools and not the driver education itself;
- With respect to the argument that a public entity cannot discriminate directly or through contractual, licensing, or other arrangements, any failure of the driver education schools to comply with the ADA or Rehabilitation Act cannot be said to be the result of requirements or policies established by the Texas Education Agency. Instead, the claim is that most that the Texas Education Agency’s failure to establish requirements or policies as allow private driver education school to be inaccessible. Accordingly, the Texas Education Agency is not accountable for the driver education schools inaccessibility because the Texas Education Agency’s requirements and policies have not caused the discrimination;
- In the absence of a contractual or agency relationship, courts have routinely held that a public entity is not liable for licensed private actor’s behavior. Further, the the DOJ’s interpretive guidance also supports the need for a contractual or agency relationship prior to holding a public entity responsible for a private entity’s conduct;
- Just because the driver education schools are heavily regulated and supervised by the Texas Education Agency does not make the schools a service, program, or activity of the Texas Education Agency. Otherwise, states and localities would be required to ensure the ADA compliance of every heavily-regulated industry.
- Reasoning of Concurring and Dissenting Opinion
- Title II regulations explicitly forbid public entities from engaging in discrimination through contractual, licensing, or other arrangements;
- Not only does 28 C.F.R. § 35.130(b)(1) specifically include licensing, but the catchall phrase “other arrangement,” goes against the majority’s narrow construction that only contractual or agency relationship qualify as programs in that licensing does not. It should be a matter of substance of each particular public/private relationship and not a matter of undefined labels;
- The majority misreads the Department of Justice enforcement guidance because the guidance only make the general point that, “many situations, however, public entities have a close relationship to private entities that are covered by title III, with the result that certain activities may at least be indirectly affected by both titles.” That is simply not the same thing as saying a close relationship requires a contractual or agency relationship;
- The way that the state interfaces driver training and the receipt of state benefits indicate an intimate participation at all levels of the private driving school industry that is more than merely regulatory. Through the Texas Education Agency, the state employs and manages the industry to achieve its own public ends. Just because the state’s active involvement in this industry is labeled licensing, does not diminish, much less block, qualifying this as a program of the state for the purposes of the ADA;
- The powers granted to the Texas Education Agency in chapter 1001 of the Texas code further support the view that private driving instruction is just one component of an overall state program since it is clear that the Texas Education Agency exerts more rigorous oversight of providers of driver education than would be expected than most run-of-the-mill licensing regimes. Examples include: 1) every driving school’s curriculum must be approved by the Texas Education Agency, and the agency designates the textbook that may be used; 2) the Texas Education Agency’s enforcement powers over driver education schools are broad and varied and suggest a greater degree of involvement in the driving schools’ operation than a typical of a plain-vanilla licensing arrangement; 3) the Texas Education Agency requires that driving school owners and staff be of good reputation and character and therefore, signals a heightened level of concern for the reliability of the school services, which is consistent with the Texas Education Agency as the public provider of social services programs: 4) the driver education schools must post a significant bond payable to the Texas Education Agency for direct use in paying refund to students and that also suggests a more intimate level of agency involvement in licensing activity than would be expected if it were purely a hands-off licensing entity; and 5) the Texas Education Agency has the right to inspect every school physically at least once a year as a condition of license renewal and more frequently if the school has a history of regulatory violations;
- The Texas Education Agency also employs driver training to teach civic responsibility, including lessons having nothing to do with the mechanics of driving. Those lessons include litter prevention and organ donation for example;
- Driver education forms part of the academic curriculum in some public schools;
- 28 C.F.R. § 35.130(b)(1)(v) contemplates precisely the situation here where a public entity discriminates indirectly by furnishing significant assistance to a private entity that is discriminating directly by failing to provide the public entity’s program to beneficiaries with disabilities. In other words, the regulation covers a public entity farming out the practical implementation of the program to private entities while retaining and exercising considerable oversight, regulation, and other substantive involvement;
- The driving school students are the direct beneficiaries of the Texas Education Agency’s program, and the Texas Education Agency furnishes operating licenses and course completion certificates to private schools that are discriminating on the basis of disability;
- State of Texas cannot legislatively mandate driver education and then abate ADA responsibility by a flea flicker lateral from the Texas Education Agency to private licensees. I should point out that this is much the same argument as the ADA being a non-delegable duty (see this blog entry).
- Driving of private and personal vehicles is an uniquely important, pervasive, and indispensable entitlement. Further, driving responsibly is a civic duty that the state seeks to promote with a unique regulatory scheme that entrusted the Texas educational agency; the fact the state licensed driver education schools happen to be private enterprise does not change these facts;
- Driver education schools serve as private mechanism for achieving public ends and public policy;
- If driver education schools would cease to exist, Texas would most likely replicate them. Therefore, driver education is a positive good and an end to itself;
- Texas has an inherent interest in driver education that it does not have in any of the other license endeavors;
- With respect to promoting handicap accessibility, Congress made the conscious calculation to impose the burden on public entities. In light of the unseemly history of systematically excluding persons with disability from public life and public activities, Congress quite intently wrote the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination. While it might not be convenient for the Texas Education Agency to require ADA compliance by licensed driver education schools, nevertheless, the ADA’s sweeping purpose is clear. Finally, if the Texas Education Agency if it finds that such modifications are too strenuous, it is allowed per the ADA to demonstrate as a defense that making the modification would fundamentally alter the nature of the service, program, or activity.
- While the United States Supreme Court’s record with respect to persons with disabilities in employment matters is very mixed, it actually has a very strong record for persons with disabilities in title II and title III matters;
- With respect to Ivy v. Williams, interesting that the case was accepted by the U.S. Supreme Court since there was no Circuit split on the issue and the court is currently at eight members. Accepting the case meant that four of them wanted to hear the case. Impossible to say which four, though one could guess it might have been Breyer, Sotomayor, Ginsberg, and Kagan voting for cert. One also wonders why the case would be accepted if they thought a 4-4 split was in order, since there is no way to tell when a new Justice will join the court. I would not hazard a guess as to which way this case will go. That said, one possibility is they might split the difference. That is, saying that a program, service, or activity is not involved, but the Texas Education Agency cannot engage in the flea flicker pass that it engages in. It also might be possible that they might say that the licensing system itself is a program, service, or activity. It will be very interesting to see how this case is decided and the breakdown of the Justices (party lines are not a good indicator of how the justices break down in ADA cases).
- Regarding Fry, it is more understandable that this case was accepted since the cases have gone both ways on requiring IDEA exhaustion with respect to service animals where the student has an IEP. This particular case is even a harder guess than Ivy as to how it might go. A ruling in favor of the school district might mean a rush away from IDEA to 504 by parents of students with disabilities so that by not having an IEP, they do not have to worry about exhausting the IDEA process.
- Regarding deaf drivers, readers might be interested in this article involving Uber seeking out deaf drivers.