Ending the Charade: The Fifth Circuit Should Expressly Adopt the Deliberate Indifference Standard for ADA Title II and RA Section 504 Damages Claims

While the Americans with Disabilities Act (“ADA”) has been law for over 30 years, the Fifth Circuit Court of Appeals has yet to adopt a definitive standard for how plaintiffs win damages under Title II of that law. Further, while the Rehabilitation Act (“RA”) has been law for almost 50 years, the Fifth Circuit has failed to announce any specific standard for how plaintiffs obtain damages under that law as well. I previously wrote an article in the pages of this journal that sought to “clarify” the Fifth Circuit’s jurisprudence on the issue. In Fifth Indifference: Clarifying the Fifth Circuit’s Intent Standard for Damages Under Title II of the Americans with Disabilities Act, 7 Tex. A&M L. Rev. Arguendo 1 (2019), I argued (1) that the Fifth Circuit should adopt the “deliberate indifference” standard and (2) that no Fifth Circuit precedent should be read as explicitly forbidding the adoption of that standard. My paper has seen great success in its downloads and its recent citation in a brief to the Fifth Circuit. However, the Fifth Circuit has still failed to adopt any specific standard and continues to use phrases like “seem to have required” and “something more than deliberate indifference.” Fortunately, what the Fifth Circuit has said and what it has done have been two different things. In reality, the Fifth Circuit has been using nothing more, less, or different than a standard deliberate indifference analysis. Thus, the “seem to have required more than deliberate indifference” standard is a mere charade. This charade should now be abandoned, and the Fifth Circuit should explicitly adopt the deliberate indifference standard. That standard being (1) a defendant knew of facts that presented a substantial risk of harm to an ADA or RA right and (2) the actor or entity failed to act appropriately on that risk. To make this argument, this Article is divided as follows. Part I discusses the historical and doctrinal background of the ADA and the RA. Part II discusses how other circuits have addressed the issue of damages actions under Title II of the ADA and the RA. Part III discusses the Fifth Circuit’s relevant jurisprudence. Part IV then explains why the Fifth Circuit should explicitly adopt deliberate indifference. Finally, Part V briefly argues why lower courts and any individual panels of the Fifth Circuit could ignore the “something more than deliberate indifference” standard and explicitly adopt ordinary “deliberate indifference.

Fifth Indifference: Clarifying the Fifth Circuit\u27s Intent Standard for Damages Under Title II of the Americans with Disabilities Act

The Americans with Disabilities Act prohibits discrimination against people with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts who have adopted either standard. This Essay seeks to clear that confusion. It offers reasons why deliberate indifference, and not the animus standard, should apply to ADA Title II claims. Further, it explains why no Fifth Circuit precedent should be construed as prohibiting the adoption of the deliberate indifference standard

Secundum Civilis: The Constitution as an Enlightenment Code

The American Constitution has been the subject of heated debate since its formation. This article simply introduces a new argument. It suggests that there exists a “form”1 of an Enlightenment era code, which is met by the Constitution, and that the requirements of this form can be derived from inspection of the three great codes of the time: the Prussian, the Austrian, and the French. It further notes that these requirements are (1) Roman law influence; (2) natural law influence; and (3) that they perform the same functions—they abrogate the prior laws on their respective subjects and they are “complete” in themselves, covering the whole aspect of a legal field. In the process of doing so, the essay shows that the common law was not the only source of inspiration for the framers of the Constitution; it also shows heavy civil law influences. The article opens with a “preliminary title”, which introduces the subject, its sources, and instructs the readers as to how to read the article itself. The whole closes by laying forth a few broad possible consequences of accepting this view, while leaving a full discussion on the consequences of this understanding to a later article

Four Pathways of Undermining Board of Trustees of the University of Alabama v. Garrett

In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign immunity; and as such, a plaintiff could not obtain damages against the states or sue the states directly for injunctive relief. Many courts and scholars have read Garrett as sounding the death knell for ADA Title I government employee plaintiffs. This article shows that such fears are misplaced. Indeed, this article offers four pathways around Garrett that show Title I and its requirements are very much alive and well. First, the article shows that traditional civil rights doctrines allow government employees to sue their employers either for damages or injunctive relief regardless of Garrett’s perceived holding. Second, the article shows how subsequent case law developed under Title II of the ADA allows Title I plaintiffs to sue the states for damages where the state conduct violates both Title I and the Constitution. Third, the article explores the ramifications of using Title II of the ADA as employment discrimination legislation instead of Title I and shows that the abrogation outcome is different. Finally, in the fourth pathway of this article, it is shown that because disability discrimination violates valid national policy legislation (passed under the Commerce Clause) any government interest manifested in such a way as to violate that policy-based law is illegitimate for purposes of equal protection rational basis scrutiny. As such, the fourth pathway argues all violations of the ADA amount to violations of the Fourteenth Amendment; and due to the analysis of the second pathway, Garrett should be totally overrule

Ending the Charade: The Fifth Circuit Should Expressly Adopt the Deliberate Indifference Standard for ADA Title II and RA Section 504 Damages Claims

While the Americans with Disabilities Act (“ADA”) has been law for over 30 years, the Fifth Circuit Court of Appeals has yet to adopt a definitive standard for how plaintiffs win damages under Title II of that law. Further, while the Rehabilitation Act (“RA”) has been law for almost 50 years, the Fifth Circuit has failed to announce any specific standard for how plaintiffs obtain damages under that law as well. I previously wrote an article in the pages of this journal that sought to “clarify” the Fifth Circuit’s jurisprudence on the issue. In Fifth Indifference: Clarifying the Fifth Circuit’s Intent Standard for Damages Under Title II of the Americans with Disabilities Act, 7 Tex. A&M L. Rev. Arguendo 1 (2019), I argued (1) that the Fifth Circuit should adopt the “deliberate indifference” standard and (2) that no Fifth Circuit precedent should be read as explicitly forbidding the adoption of that standard. My paper has seen great success in its downloads and its recent citation in a brief to the Fifth Circuit. However, the Fifth Circuit has still failed to adopt any specific standard and continues to use phrases like “seem to have required” and “something more than deliberate indifference.” Fortunately, what the Fifth Circuit has said and what it has done have been two different things. In reality, the Fifth Circuit has been using nothing more, less, or different than a standard deliberate indifference analysis. Thus, the “seem to have required more than deliberate indifference” standard is a mere charade. This charade should now be abandoned, and the Fifth Circuit should explicitly adopt the deliberate indifference standard. That standard being (1) a defendant knew of facts that presented a substantial risk of harm to an ADA or RA right and (2) the actor or entity failed to act appropriately on that risk. To make this argument, this Article is divided as follows. Part I discusses the historical and doctrinal background of the ADA and the RA. Part II discusses how other circuits have addressed the issue of damages actions under Title II of the ADA and the RA. Part III discusses the Fifth Circuit’s relevant jurisprudence. Part IV then explains why the Fifth Circuit should explicitly adopt deliberate indifference. Finally, Part V briefly argues why lower courts and any individual panels of the Fifth Circuit could ignore the “something more than deliberate indifference” standard and explicitly adopt ordinary “deliberate indifference.

Fifth Indifference: Clarifying the Fifth Circuit\u27s Intent Standard for Damages Under Title II of the Americans with Disabilities Act

The Americans with Disabilities Act prohibits discrimination against people with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts who have adopted either standard. This Essay seeks to clear that confusion. It offers reasons why deliberate indifference, and not the animus standard, should apply to ADA Title II claims. Further, it explains why no Fifth Circuit precedent should be construed as prohibiting the adoption of the deliberate indifference standard

Four Pathways of Undermining Board of Trustees of the University of Alabama v. Garrett

In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign immunity; and as such, a plaintiff could not obtain damages against the states or sue the states directly for injunctive relief. Many courts and scholars have read Garrett as sounding the death knell for ADA Title I government employee plaintiffs. This article shows that such fears are misplaced. Indeed, this article offers four pathways around Garrett that show Title I and its requirements are very much alive and well. First, the article shows that traditional civil rights doctrines allow government employees to sue their employers either for damages or injunctive relief regardless of Garrett’s perceived holding. Second, the article shows how subsequent case law developed under Title II of the ADA allows Title I plaintiffs to sue the states for damages where the state conduct violates both Title I and the Constitution. Third, the article explores the ramifications of using Title II of the ADA as employment discrimination legislation instead of Title I and shows that the abrogation outcome is different. Finally, in the fourth pathway of this article, it is shown that because disability discrimination violates valid national policy legislation (passed under the Commerce Clause) any government interest manifested in such a way as to violate that policy-based law is illegitimate for purposes of equal protection rational basis scrutiny. As such, the fourth pathway argues all violations of the ADA amount to violations of the Fourteenth Amendment; and due to the analysis of the second pathway, Garrett should be totally overrule