THE SANDOVAL
RULING
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
August 17, 2001
Injustice anywhere is a threat
to justice everywhere.
Martin Luther King, Jr.
ACKNOWLEDGMENT
The National Council on Disability (NCD) wishes to express its
gratitude to Professor Robert L. Burgdorf Jr. for developing this
analysis of the U.S. Supreme Court's decision in Alexander v.
Sandoval and its implications for litigation under the Americans
with Disabilities Act, Section 504 of the Rehabilitation Act, and
the Individuals with Disabilities Education Act. NCD would like
to thank the disability organizations that gave their time in reviewing
and commenting on the analysis. NCD also thanks the Bazelon Center
for Mental Health Law and the National Association of Protection
and Advocacy Systems for sharing with us their background paper
on Sandoval.
CONTENTS
Purpose of this Analysis
Background
The Dissent
Potential Adverse Consequences of the Sandoval
Decision
Reasons Why Sandoval Should Not Be a
Significant Obstacle in Disability Rights Litigation
Conclusion
Recommendation
Purpose of
this Analysis
In its 2000-2001 term, the U.S. Supreme Court issued a number of
decisions that dramatically changed the ground rules for civil rights
lawsuits, making it significantly harder for victims of the most
pervasive kinds of discrimination to win court relief. One decision
in particular, Board of Trustees of the University of Alabama
v. Garrett, 121 S.Ct. 955 (2001), devastatingly stripped the
right of state workers to sue their employers for money damages
for violations of Title I of the Americans with Disabilities Act
(ADA), which prohibits employment discrimination against people
with disabilities. In response, NCD convened a series of meetings
with disability policy experts and litigators to gain their assessment
of the breadth and nature of the impact of these decisions on key
civil rights laws.
During the group's discussions, the Supreme Court's ruling in Alexander
v. Sandoval, 121 S.Ct. 1511 (2001) elicited great concern about
contrariness of the decision to both long-standing legal precedent
and Congressional intent. NCD is deeply troubled by the Sandoval
decision and its potential to curb lawsuits under a variety of civil
rights laws. The elimination of an important legal avenue as a result
of the Sandoval decision undermines across the board Americans'
ability to respond to systemic denials of their civil rights with
lawsuits that employ systemic legal approaches. This is especially
true for people with disabilities from diverse communities; the
Sandoval decision represents one less systemic approach available
for the protection of their civil rights.
NCD conducted the following analysis of the Sandoval decision
and its implications for litigation under ADA, Section 504 of the
Rehabilitation Act, and the Individuals with Disabilities Education
Act (IDEA).
Background
The Supreme Court of the United States issued a decision in Alexander
v. Sandoval, 121 S.Ct. 1511 (2001) on April 24, 2001. The Sandoval
case involved a class action claim brought by non-English- speaking
residents of the State of Alabama against the Director of the Alabama
Department of Public Safety. The plaintiff class claimed that the
Department's offering Alabama's drivers' licensing exams only in
English had the effect of discriminating against them on the basis
of their national origin. The plaintiffs argued that such discrimination
violated Title VI of the Civil Rights Act of 1964, and the implementing
regulations promulgated pursuant to Section 602 of the Act by the
Departments of Justice and Transportation. Section 601 of the Civil
Rights Act prohibits discrimination on the basis of race, color
or national origin in federally funded programs. 42 U.S.C. §
2000d. Section 602 authorizes federal agencies to issue regulations
to effectuate the requirements of § 601. 42 U.S.C. § 2000d-1.
A bitterly divided Court ruled 5-to-4 that there is no private right
of action to enforce the disparate impact regulations promulgated
under Title VI. This means that private individuals do not have
the right to file lawsuits under Title VI alleging that they have
suffered disparate impact discrimination by recipients of federal
funds.
To understand the ruling in Sandoval, it is necessary to
appreciate the distinction between disparate impact and intentional
discrimination. "Disparate impact" refers to facially neutral actions
that discriminate in their effect; this type of discrimination is
contrasted with actions that involve intentional discrimination--acts
taken for the direct purpose of discriminating. Thus, a rule that
excluded people of French heritage from taking the driver's license
exam would constitute intentional discrimination on the basis of
national origin. Presenting the exam only in English, on the other
hand, might not be the result of an intent to discriminate, and
it would not eliminate all applicants with origins in foreign countries
or any particular foreign country, only those who had not mastered
English. The plaintiffs in Sandoval argued that offering
the exam only in English had the effect of denying a license to
them because of their national origins in countries where English
was not spoken, and thus constitutes disparate impact discrimination.
It is clear that the statute (Section 601) prohibits intentional
discrimination; the Court had indicated in two prior decisions that
it only prohibits intentional discrimination. This was the ultimate
outcome in Guardians Assn. v. Civil Serv. Comm'n of New York
City, 463 U.S. 582 (1983), a decision that resulted in a complicated
hodgepodge of different decisions on the part of various groups
of Justices, none of whom could garner a majority for its reasoning.
In Alexander v. Choate, 469 U.S. 287, 293 (1985), however,
the Court had stated clearly, in dicta, that "Title VI itself directly
reach[es] only instances of intentional discrimination." The regulations
issued pursuant to Section 602 to implement the statutory nondiscrimination
requirement of Section 601 prohibit both intentional and disparate
impact discrimination. The two sets of regulations involved in Sandoval--those
of the Department of Justice and those of the Department of Transportation--both,
in addition to prohibiting intentional discrimination, forbid recipients
of federal funding from using "criteria or methods of administration
which have the effect of subjecting individuals to discrimination
because of their race, color or national origin." 28 C.F.R. §
42.104(b)(2) (DOJ regulations) (emphasis added) and 49 C.F.R. §
21.5(b)(2) (DOT regulations) (emphasis added).
It is well-established that there is an implied private right of
action to enforce Section 601 itself. Where no express right of
action is specifically established in a statute, an implicit right
of action is one that is inferred from congressional intent even
though it is not expressly spelled out in the language of the statute
itself. The question addressed in Sandoval was whether private
individuals have a right of action permitting them to go to court
to enforce the disparate impact provisions of the regulations. This
question had been left unresolved in the Court's earlier decision
in the Guardians Assn. case, in which five Justices expressed
the view, in separate opinions, that the Title VI disparate impact
regulations were permissible under Section 602, but three of those
Justices expressly reserved the question of whether those regulations
may be privately enforced. Sandoval at 121 S.Ct. 1517.
In Sandoval, the Supreme Court held 5 to 4 that the plaintiffs
could not privately enforce the disparate impact provisions of Title
VI regulations.
The majority opinion, written by Justice Scalia, accepts that regulations
applying Section 601's ban on intentional discrimination are covered
by the cause of action to enforce that section. Id. at 1518.
The majority also assumes for purposes of deciding Sandoval
that the regulations promulgated under Section 602, including the
disparate impact regulations, are valid. Id. at 1517. The
majority concludes, however, that the disparate impact provisions
do not apply Section 601 since they "forbid conduct that Section
601 permits." Id. at 1519. Therefore, the majority reasons,
if there is a private right of action to enforce the disparate impact
provisions, it "must come, if at all, from the independent force
of Section 602." Id. The majority found that the "text and
structure of Title VI" evidence "no congressional intent to create
a private right of action" under Section 602. Id. at 1520-21.
According to the majority, "rights-creating language" such as that
in Section 601 "is completely absent from Section 602." Id.
at 1521. Instead, the language of Section 602 focuses on the agencies
that are directed to issue regulations, and the methods, including
withholding of federal funds, that are to be used to enforce the
requirements of the regulations. Id. The majority reasons
that the mentioned enforcement mechanisms "tend to contradict a
congressional intent to create privately enforceable rights through
Section 602 itself." Id. Ultimately, the majority reaches
the following conclusion: "Neither as originally enacted nor as
later amended does Title VI display an intent to create a freestanding
private right of action to enforce regulations promulgated under
Section 602. We therefore hold that no such right of action exists."
Id. at 1523.
THE DISSENT
Justice Stevens, writing on behalf of himself and Justices Souter,
Ginsburg, and Breyer, filed a lengthy and contentious dissenting
opinion. The dissenting opinion and the majority's comments in response
to the dissent are highly adversarial, if not outright hostile,
in tone, and characterized at times by biting rebukes of the other
side's reasoning and conclusions. Justice Stevens, for example,
calls the decision in Sandoval "unfounded in our precedent
and hostile to decades of settled expectations," and accuses the
majority of making "three distinct, albeit interrelated errors,"
including "a muddled account of both the reasoning and the breadth
of our prior decisions," a "flawed and unconvincing analysis of
the relationship between Sections 601 and 602... ignoring more plausible
and persuasive explanations detailed in our prior opinions," and
"badly misconstru[ing]" prior precedent. Id. at 1524.
A basic point argued in the dissent is that even though the issue
had not been explicitly addressed, a proper reading of the prior
relevant precedents of the Court, including Guardians Assn.,
Lau v. Nichols, 414 U.S. 563 (1974), and Cannon v. University
of Chicago, 441 U.S. 677 (1979), should have led to a conclusion
that the private right of action to enforce the disparate impact
provisions of Title VI regulations had already been recognized by
the Court. Justice Stevens' opinion also contends that the disparate
impact provisions are an integral part of achieving the antidiscrimination
goals established in Section 601 so that "it makes no sense to differentiate
between private actions to enforce Section 601 and private actions
to enforce Section 602." Sandoval at 121 S.Ct. 1533. In addition,
the dissent maintains that the majority is wrong in not finding
a congressional intent to create a private right of action to enforce
disparate impact provisions and that the majority "adopts a methodology
that blinds itself to important evidence of congressional intent."
Id. at 1534.
In an auxiliary point whose ramifications are discussed below,
Justice Stevens considered the impact of 42 U.S.C. § 1983 on
the private right of action issue.
POTENTIAL ADVERSE CONSEQUENCES
OF THE SANDOVAL DECISION
Some defendants have begun to latch onto the Sandoval decision
to argue that plaintiffs are not entitled to a private right of
action to enforce some regulatory provisions. The broadest reading
of the decision would contend that there can be no implied private
right of action to enforce any regulatory provisions that go beyond
the statutory provisions. Slightly, more narrowly, the opinion can
be interpreted as establishing that there can be no private right
of action for enforcing a regulatory provision dealing with disparate
impact discrimination where the statute does not itself prohibit
disparate impact discrimination. Section 504 of the Rehabilitation
Act and Title II of ADA are particularly likely targets of such
arguments because Section 504 expressly incorporates the rights
and remedies of Title VI, 29 U.S.C. § 794a(2), and Title II
of ADA incorporates Section 504 rights and remedies, 42 U.S.C. §
12133.
The broad nondiscrimination provisions of Section 504 and Title
II of ADA are worded very similarly to the language of Section 601
of Title VI, which may lead defendants to argue that they prohibit
only intentional discrimination. Some of the provisions of the regulations
implementing Section 504 and Title II, particularly those that prohibit
methods of administration that have the effect of discriminating
based on disability, prohibit certain kinds of nonintentionally
discriminatory actions. Defendants may seek to characterize other
regulatory provisions, such as those requiring reasonable accommodations
and barrier removal, as going beyond simply prohibiting intentional
discrimination.
Indeed, in the first reported decision to address the Sandoval
ruling in a disability nondiscrimination context, Access Living
of Metropolitan Chicago v. Chicago Transit Authority, No. 00
C 0770, 2001 WL 492473 (N.D.Ill., May 9, 2001), the defendant argued
in brief supporting a motion to dismiss that because the "remedies,
procedures, and rights" available to private litigants under Title
VI are the same as those under ADA and the Rehabilitation Act, the
Supreme Court's analysis in Sandoval "bears directly on the
cause of action here."1 2001 WL
492473 at *6. The Access Living case involves a challenge to various
inadequacies of the Chicago Transit Authority's (CTA) accessibility
efforts as violating ADA and Section 504. Relying on Sandoval,
the CTA contended that the plaintiffs may only bring a claim under
ADA if they can show proof of intentional discrimination and that
the regulations upon which plaintiffs relied were no longer good
law because those regulations extend to more than intentional discrimination.
2001 WL 492472 at *6.
The federal district court judge ruled that Sandoval did
not present an obstacle to the plaintiffs' cause of action in the
Access Living case because of ADA Title II statutory provisions
providing that discrimination against disabled persons includes
the failure to take certain affirmative steps, including purchasing
or leasing accessible buses (42 U.S.C. § 12142), providing
paratransit services (Id. Section 12143), constructing new
public transportation facilities to be accessible to and usable
by individuals with disabilities (Id. Section 12146), and
making altered portions of major stations accessible (Id.
Section 12147). 2001 WL 492472 at *6. The court reasoned that, unlike
in Sandoval, the Access Living plaintiffs had pled
and presented evidence of the precise type of discrimination defined
by Congress--the failure to make certain reasonable modifications,
and that the regulatory provisions they relied on under ADA and
Section 504 do not expand the meaning of discrimination, but simply
clarify the definition of discrimination prohibited in the statutes.
Id.
In a scary footnote, however, the judge added the following comment:
"In light of Sandoval and this court's discussion of its
implications, it is doubtful that individual plaintiffs would have
a cause of action under ADA merely by proof of a disproportionate
impact on disabled persons." Id. at *7, n.1.
It is likely that defendants in other disability nondiscrimination
cases will argue that the Sandoval ruling precludes a private
right of action to enforce other provisions in regulations issued
to enforce ADA, Section 504, and possibly even the IDEA and other
laws.2
ARGUMENTS LIMITING THE IMPACT
OF SANDOVAL ON DISABILITY RIGHTS LITIGATION
1. The impact of Sandoval should be limited to the particular
unique situation from which it arose.
The legal situation addressed in Sandoval was an unusual
one. It involved a statutory prohibition of discrimination that
previous Supreme Court precedents had ruled (at least according
to the majority in Sandoval) was limited to intentional discrimination.
It then involved disparate impact provisions that the Supreme Court
believed went beyond the statutory prohibition but that the Supreme
Court also assumed were valid regulations. To date, the Supreme
Court has never ruled that any major disability rights statute prohibits
only intentional discrimination (although punitive and compensatory
damages are limited to intentional discrimination under various
such statutes). Moreover, unlike under Title VI, disability rights
regulatory provisions stating requirements that go beyond prohibiting
intentionally discriminatory acts are often based upon or supported
by explicit statutory language. Under several disability nondiscrimination
laws, a private right of action is established explicitly and need
not be implied. Disability discrimination has different dynamics
and different origins from the types of discrimination prohibited
in Title VI. The Sandoval ruling should not be applied beyond
the peculiar legal context in which it arose.
2. Despite the Sandoval ruling, where challenged discrimination
is "under color of state law," 42 U.S.C. § 1983 may provide
a right of action to plaintiffs to protect "federal rights" created
under disparate impact regulations.
The Sandoval case addressed the question of whether Congress
intended to create a private right of action under Section 602 implicitly.
42 U.S.C. § 1983 provides an alternative, explicit avenue to
such a right of action in certain circumstances. Section 1983 provides,
in relevant part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress....
Basically, this provision creates a right to bring a lawsuit whenever
rights secured under federal law are deprived by any person acting
under state authority.
In his dissent in Sandoval, Justice Stevens noted the existence
of this alternative source of a right of action, and accused the
majority of "den[ying] relief to the respondents merely because
they neglected to mention 42 U.S.C. § 1983 in framing their
Title VI claim...." 121 S.Ct. at 1527. He added, "Litigants who
in the future wish to enforce the Title VI regulations against state
actors in all likelihood must only reference Section 1983 to obtain
relief.," and suggested further that the plaintiffs in Sandoval
could rechallenge Alabama's English-only policy in a complaint that
invokes Section 1983 even after the Supreme Court's ruling. Id.
This approach was quickly put to the test in a Title VI case, South
Camden Citizens in Action v. New Jersey Department of Environmental
Protection, Civil Action No. 01-702, 2001 WL 491965 (D.N.J.,
Supplemental Opinion issued May 10, 2001). The defendants in that
case argued that the court's previously issued preliminary injunction
on plaintiffs' disparate impact discrimination claim should be vacated
in light of the Sandoval ruling. The district court judge,
however, ruled as follows:
(1) the Supreme Court's decision in Sandoval does not
preclude plaintiffs from pursuing their claim for disparate impact
discrimination, in violation of the EPA's implementing regulations
to Title VI, under 42 U.S.C. § 1983; and (2) Plaintiffs are
entitled to preliminary injunctive relief based upon a claim for
disparate impact discrimination in violation of the EPA's implementing
regulations to Title VI, brought under 42 U.S.C. § 1983.
2001 WL 491965 at *2.
The court found that the EPA Title VI regulations created a federal
right (citing Wright v. City of Roanoke, 479 U.S. 418 (1987)
for the proposition that agency regulations may create "rights"
within the meaning of Section 1983) and found that right to be enforceable
under Section 1983. 2001 WL 491965 at *19, *38.
Where discrimination by an agency or instrumentality of a state
or territory is alleged to violate federal regulations, Section
1983 may provide an explicit private right of action. However, the
law is not settled. The Supreme Court has not spoken conclusively
on this issue nor is there consensus among the circuits on the enforceability
of disparate impact regulations.3
Future cases will surely test the viability of this approach as
a way of sidestepping the Sandoval ruling in applicable circumstances.
3. The Sandoval rationale does not apply to the principal
disability nondiscrimination statutes because, unlike under Title
VI, the Supreme Court has not and reasonably could not declare that
these statutes only prohibit intentional discrimination.
As noted previously, a central premise of the majority's ruling
in Sandoval was that the Court had ruled previously "that
Section 601 prohibits only intentional discrimination." 121 S.Ct.
at 1516. The same cannot be said of any of the major disability
rights statutes.
In the only case in which the Supreme Court approached the issue,
although it ultimately found it did not need to decide the issue,
the Court in Alexander v. Choate, 469 U.S. 287 (1985), provided
clear signals that discrimination on the basis of disability--unlike
discrimination prohibited under Title VI--is not limited to intentional
discrimination, but encompasses at least some types of disparate
impact. In Choate, the Court distinguished Section 504 from
Title VI and discussed at great length the legislative history of
Section 504 indicating Congress's intent to prohibit discrimination
against people with disabilities that "was perceived by Congress
to be most often the product, not of invidious animus, but rather
of thoughtlessness and indifference--of benign neglect." Id.
at 295. The Court's opinion suggests that it would be illogical
to read Section 504 to prohibit only intentional discrimination,
since "much of the conduct that Congress sought to alter in passing
the Rehabilitation Act would be difficult if not impossible to reach
were the Act construed to proscribe only conduct fueled by a discriminatory
intent." Id. at 296-97. The Court observed that elimination
of architectural barriers and the "discriminatory effect" of job
qualification procedures were among the central aims of the Act,
and such forms of discrimination are typically not the product of
intentional discrimination. Id. at 297. The Court also recognized
in Choate that Congress enacted Section 504 to address the
"'shameful oversights,' which caused the handicapped to live among
society 'shunted aside, hidden, and ignored.'" Id. at 295-
96 (citations omitted).
That discrimination on the basis of disability cannot be limited
only to intentional discrimination is made crystal clear by the
ruling in Choate that reasonable adjustments/reasonable accommodations
must at times be made to assure meaningful access. 469 U.S. at 300-01
(clarifying and elaborating on Southeastern Community College
v. Davis, 442 U.S. 397 (1979)); see particularly 469
U.S. at 301 & n. 21. No discussion of intentionality is included
in the Court's analysis of the meaningful access and reasonable
accommodation requirements. Thus, the regulations promulgated under
Section 504--unlike the Title VI regulation at issue in Sandoval--fall
squarely within the scope of disability- based "discrimination"
that the statute prohibits.
In fact, the majority decision in Sandoval includes the
Choate decision in a list of decisions in which the Court
had addressed regulations that would be enforceable through a private
right of action because the regulations simply constituted an authoritative
interpretation of the discrimination prohibited by the statute.
121 U.S. at 1518. In a parenthetical, the Sandoval opinion
characterizes the provisions at issue in Choate as "regulations
clarifying what sorts of disparate impacts upon the handicapped
were covered by Section 504 of the Rehabilitation Act of 1973, which
the Court assumed included some such impacts." Id. at 1518-19.
Moreover, a huge body of legal scholarship--including congressional
commentary and findings, and analysis by NCD and the U.S. Commission
on Civil Rights; the lower courts; writers of books, treatises,
law review and journal articles--documents the dynamics by which
people are discriminated against on the basis of disability and
establishes indisputably that much such discrimination takes forms
other than intentionally discriminatory acts and that Congress was
fully aware of this fact when it enacted statutes such as Section
504, ADA, and IDEA.
4. The Sandoval analysis clearly does not apply to Titles
I and III of ADA nor to IDEA because these statutory provisions
contain an explicit private right of action and clarify what types
of discrimination they prohibit, including some forms of discrimination
that are not necessarily intentional.
The rationale and analysis of the Sandoval opinion are manifestly
inapplicable to the disparate impact provisions of regulations issued
under Titles I and III of ADA and under IDEA. Unlike the one-sentence
prohibition of discrimination in Section 601, IDEA and Titles I
and III of ADA are lengthy, detailed, and specific. The statutory
provisions of IDEA are so extensive that the regulations issued
under the Act do little other than to restate the statutory requirements.
Titles I and III of ADA explicitly clarify various types of discrimination
that are prohibited, and these include a number of forms of discrimination
that go beyond intentional discrimination. See, e.g., 42
U.S.C. § 12112(b)(5) (requiring employers to make reasonable
accommodations); 42 U.S.C. § 12112(b)(6) (barring employers
from using tests and standards that tend to screen out individuals
with disabilities); 42 U.S.C. § 12182(b)(2)(A)(ii) (requiring
public accommodations to make reasonable modifications to their
policies and practices); 42 U.S.C. § 12182(b)(2)(A)(iii) (requiring
public accommodations to provide auxiliary aids and services); 42
U.S.C. § 12182(b)(2)(A)(iv) (requiring public accommodations
to remove architectural and communication barriers). Both Titles
I and III bar the use of methods of administration that have the
effect of discriminating against people with disabili ties. 42 U.S.C.
§ 12112(b)(3) (Title I); 42 U.S.C. § 12182(b)(1)(D) (Title
III). The regulations under both Titles I and III clarify and interpret
the requirements slightly, but do not establish any new forms of
discrimination not prohibited in the statutory language.
It is impossible to characterize regulations under IDEA and under
ADA Titles I and III, as the Sandoval majority described
the Title VI regulations, as "forbid[ding] conduct that [the statute]
permits." 121 S.Ct. at 1519.
Moreover, unlike under Title VI, IDEA and Titles I and III of ADA
create a private right of action explicitly in the statutory language.
Under IDEA, parties aggrieved by the results of due process hearing
are explicitly given a right to bring a civil action. 20 U.S.C.
§ 1415(i)(2). Title I of ADA provides that a list of particular
remedies and procedures of Title VII of the Civil Rights Act shall
be available to address violations of Title I. 42 U.S.C. §
12117(a). Among the referenced Title VII remedies is the one that
explicitly gives aggrieved parties the right to file a civil action.
42 U.S.C. § 2000e-5(f). Similarly, Title III of the ADA provides
that remedies and procedures under Title II of the Civil Rights
Act shall be available to persons subjected to discrimination on
the basis of disability under Title III. 42 U.S.C. § 12188(a)(1).
Among the referenced provisions is the one that authorizes a civil
action by an aggrieved person. 42 U.S.C. § 2000a-3(a). The
existence of a private right of action explicitly granted in the
statutory language obviously removes these statutes from the situation
addressed in Sandoval where the Court sought to determine
whether a private right of action should be implied under Section
602.
5. Although they are modeled to some degree on language in Title
VI, Title II of ADA and Section 504 of the Rehabilitation Act differ
from Title VI in significant ways that make Sandoval inapplicable.
The prohibition of discrimination in Section 504 was modeled to
some extent on Title VI, and Section 504 incorporates the rights
and remedies of Title VI. 29 U.S.C. §§ 794(a) & 794a(2).
The prohibition of discrimination in Title II of the ADA was derived
from the language of Section 504, and Title II incorporates the
rights and remedies of Section 504. 42 U.S.C. §§ 12132
& 12133. Simplistically, these facts might give the impression that
Section 504 and Title II regulations are susceptible to the same
analysis accorded Title VI regulations in Sandoval. Informed
scrutiny reveals, however, that Section 504 and Title II differ
in critical ways from the Title VI situation. Indeed, the Supreme
Court has itself cautioned that "too facile an assimilation of Title
VI law to Section 504 must be resisted." Alexander v. Choate,
469 U.S. at 293 n. 7.
First, as discussed at some length in section 3 above, the prohibition
of discrimination on the basis of disability necessarily encompasses
various forms of discrimination that go beyond intentional discrimination.
In particular, the discussion of the Court's analysis of Section
504 and its legislative history in Alexander v. Choate clearly
indicates that Section 504 addresses forms of disparate impact discrimination.
The broader congressional concept of discrimination was underscored
with the enactment of ADA; Congress declared in the findings section
of ADA that "individuals with disabilities continually encounter
various forms of discrimination" including, in addition to intentional
discrimination, "the discriminatory effects of architectural,
transportation, and communication barriers, overprotective rules
and policies, failure to make modifications to existing facilities
and practices, exclusionary qualification standards and criteria,
segregation, and relegation to lesser services, programs, activities,
benefits, jobs, or other opportunities." 42 U.S.C. § 12101(a)(5)
(emphasis added). In Olmstead v. L.C., 527 U.S. 581 (1995),
the Supreme Court specifically rejected the argument that discrimination
under ADA requires a showing of "uneven treatment of similarly situated
individuals" (i.e., disparate treatment), and concluded that
"Congress had a more comprehensive view of the concept of discrimination
advanced in ADA." Id. at 598.
The specific text of Section 504 also indicates that Congress intended
it to cover non-intentional discrimination. For example, Section
504(d) provides that the standards of Title I of ADA (which include
a prohibition on the use of methods of administration that have
the effect of discriminating, reasonable accommodation requirements,
and prohibitions on criteria that tend to screen out people with
disabilities) are to be applied for purposes of employment discrimination
claims under Section 504, and Section 504(c) states that small providers
are "not required by subsection (a) of this section to make significant
structural alterations to their existing facilities for the purpose
of assuring program accessibility, if alternative means of providing
the services are available," 29 U.S.C. §§ 794(d), (c).
These provisions demonstrate that Section 504 reaches various forms
of non-intentional discrimination.
Insofar as Title II of ADA builds upon the concept of discrimination
under Section 504, the discussion of the breadth of discrimination
covered by Section 504 applies to Title II. Moreover, in Title II,
Congress did not, as in Section 602 of the Civil Rights Act, simply
authorize the issuance of regulations to implement the Act; it expressly
incorporated by reference particular Section 504 regulations that
include various provisions reaching non-intentional discrimination.
See 42 U.S.C. § 12134 (directing the Attorney General to promulgate
regulations to implement Title II and specifying that such regulations
must be consistent with the regulations in 28 C.F.R. Part 39 with
respect to program accessibility and communications, and must be
consistent with the coordination regulations of Section 504 (which
include provisions requiring integrated settings, reasonable accommodations,
and prohibiting methods of administration that have the effect of
discrimination), 28 C.F.R. Part 41, for all other areas). The requirement
in the statutory language of consistency with these specified regulations
amounts to statutory incorporation of the nondiscrimination standards
articulated in the referenced regulations that certainly are not
limited to intentional discrimination. (In light of the discussion
of the Section 1983 alternative in section 2 above, it should also
be noted that, since Title II of ADA deals with the activities of
state and local government entities, discrimination covered by Title
II would be an obvious candidate for a Section 1983 right of action.)
For these reasons, despite superficial associations of Section
504 and ADA Title II with some aspects of Title VI, Section 504
and Title II of ADA differ in important respects that make the reasoning
and analysis of the majority in Sandoval inapplicable.
CONCLUSION
As the Access Living of Metropolitan Chicago v. Chicago Transit
Authority case illustrates, there is every reason to believe
that defendants will seek to use the Supreme Court's decision in
Alexander v. Sandoval to try to derail disability discrimination
lawsuits. This analysis seeks to demonstrate, however, that there
are sound reasons for distinguishing the Sandoval situation
and strong arguments for defending a right to a private cause of
action to enforce regulatory requirements, including disparate impact
provisions, under ADA, Section 504, IDEA, and other disability rights
statutes.
Members of the disability rights community, including especially
the legal advocates, need to be on guard to anticipate and respond
vigorously to Sandoval-based challenges. NCD hopes that the
analysis presented here will help prevent the use of Sandoval
to abridge the ability to remedy violations of civil rights laws.
NCD is concerned about the erosion of the critical protections afforded
by civil rights laws and remains committed to continuing to dialogue
with disability advocates and the broader civil rights community
about maintaining the integrity of these civil rights laws. The
Court's decision in Sandoval is much more than a legal abstraction;
it marks a poignant shift in how Americans are allowed to treat
one another.
1 Just
prior to the completion of this document, the U.S. District Court
for the Eastern District of Pennsylvania issued a ruling declining
to expand Sandoval to preclude plaintiffs' Section 504 and
ADA claims against a state mental hospital for failing to transfer
community living situations. Frederick L. v. Department of Public
Welfare, 2001 WL 830480 (E.D. Pa.).
2 Our research has not disclosed
any Sandoval-based challenges to enforcement of provisions
of other disability nondiscrimination laws such as the Fair Housing
Amendments Act, the Air Carrier Access Act, the Voting Accessibility
for the Elderly and Handicapped Act, the Architectural Barriers
Act, and Sections 501 and Section 508 of the Rehabilitation Act
of 1973; and such other statutes are not addressed in this memorandum.
For various reasons, most such statutes do not appear to be seriously
vulnerable to Sandoval-like analysis.
3 See, Harris v. James, 127
F.3d 993 (11th Cir. 1997)(Medicaid regulation unenforceable under
Section 1983); Smith v. Kirk, 821 F.2d 980 (4th Cir. 1987)(Social
Security Act's implementing regulations do not create an enforceable
right); But see, Boatman v. Hammons, 64 F.3d 286 (6th Cir.
1998); Buckley v. Redding, 66 F.3d 188 (9th Cir. 1995); West
Virginia University Hospitals v. Casey, 885 F.2d 11, 18 (3rd
Cir. 1989). |