Understanding the ADA

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

DOJ reply brief

Can DOJ Enforce Title II of the ADA Redux

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

I

DOJ Arguments

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

II

Takeaways

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