Memorandum of The United States As Amicus Curiae
Memorandum of The United States As Amicus Curiae
)
DONALD GALLOWAY, )
)
Plaintiff, )
)
v. ) Civil Action No. 91-0644 (JHG)
)
SUPERIOR COURT OF THE DISTRICT )
OF COLUMBIA )
)
and )
)
THE DISTRICT OF COLUMBIA, )
)
Defendants. )
)
I. Introduction
jury duty, he was informed by personnel of the Superior Court of the District
of Columbia that the Court's policy was to exclude all blind persons from jury
16, 1993, this Court granted plaintiff's motion for summary judgment for
declaratory and injunctive relief, holding that the Superior Court's policy of
categorically excluding blind persons from jury service violates title II of the
relief.1
In this brief, the United States as amicus curiae urges the Court to hold
that the plaintiff is entitled to seek compensatory damages under both title II
of the ADA and section 504 of the Rehabilitation Act and, further, that the
has a strong interest in ensuring that the case law developed in this suit is
consistent with the United States' interpretation of the statute and the
2
Department of Justice's regulation implementing title II of the ADA, 28 C.F.R.
pt. 35.
cases involving section 504, both before the Supreme Court and other federal
courts.4
The issues raised in this case implicate the ability of both the
Department of Justice and private plaintiffs to obtain relief under title II and
section 504. Furthermore, because the Attorney General does not have
3
citizens as "private attorneys general" are critical to the successful
415 U.S. 36, 45 (1974) (title VII of the 1964 Civil Rights Act (employment));
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972) (title VIII of
the 1968 Civil Rights Act (fair housing)); Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400, 401-402 (1968) (title II of the 1964 Civil Rights Act (public
accommodations)).
II. Argument
civil rights statute protecting the rights of persons with disabilities. The
. . . and
includes the right to be compensated for injuries resulting from the unlawful
Title II of the ADA was patterned after section 504 of the Rehabilitation
Act of 1973, the first federal statute to provide broad prohibitions against
4
discrimination on the basis of disability. Section 504 prohibits discrimination
amendment immunity when it enacted the ADA. In the Civil Rights Remedies
Equalization Act of 1986, Congress did the same for suits brought under
section 504.
provisions after section 504. Section 203 of the ADA, 42 U.S.C. § 12132,
procedures, and rights set forth in section 505 of the Rehabilitation Act," 29
5
enforced.6 As a result, the remedies afforded under title II and section 504
Section 505 of the Rehabilitation Act does not itself specify what
remedies are available for violations of section 504. Rather, it adopts the
rights and remedies available under title VI of the Civil Rights Act of 1964, 42
courts have held that compensatory damages are authorized under both
7 See, e.g., Bonner v. Lewis, 857 F.2d 559, 566 (9th Cir.
1988); Moore v. Warwick Public School District N. 29, 794 F.2d
322, 325 (8th Cir. 1986); Ciampa v. Massachusetts Rehabilitation
Comm'n, 718 F.2d 1, 5 (1st Cir. 1983); Miener v. Missouri, 673
F.2d 969, 977-79 (8th Cir. 1982), cert. denied, 459 U.S. 909,
916 (1982); Nelson v. Thornburgh, 567 F.Supp. 369 (E.D.Pa.
1983), aff'd without opinion, 732 F.2d 147 (3d Cir. 1984), cert.
denied, 469 U.S. 1188 (1985). See also Smith v. Robinson, 468
U.S. 992, 1020 n.24 (1984) ("courts generally agree that damages
are available under § 504"). But see Marshburn v. Postmaster
Gen., 678 F.Supp. 1182 (D.Md. 1988), aff'd without opinion, 861
F.2d 265 (4th Cir. 1988); Byers v. Rockford Mass Transit Dist.,
635 F.Supp. 1387, 1391 (N.D.Ill. 1986); Shuttleworth v. Broward
County, 649 F.Supp. 35, 38 (S.D.Fla. 1986).
6
In a decision interpreting title IX of the Education Amendments Act of
1972, 20 U.S.C. § 1681, yet another statute patterned after title VI, the
Supreme Court last term ruled that a private plaintiff is entitled to recover
title IX adopts the rights and remedies provided under title VI without
damages are not available to private plaintiffs seeking to enforce their rights
continually abused her and subjected her to sexual harassment. The student
had since graduated and sought damages. The school district claimed that
only injunctive relief could be awarded in a private suit under title IX. The
7
Ct. at 1032-33. It based its decision on the longstanding and fundamental
federal courts have the power to award any appropriate relief in a cognizable
the Court concluded that courts should presume the availability of all forms
of relief unless Congress has expressly indicated otherwise. Id. (citing Davis
the Franklin Court found no indication, either in the statute itself or its
under title IX. In fact, the Franklin Court noted that after Cannon, Congress
twice10 had the opportunity to limit the remedies available under title IX and
made no effort to do so either time.11 The Court thus concluded that the full
8
Another judge of this court has already adopted the Franklin analysis and
Doe v. District of Columbia, 796 F. Supp 559, 572 (D.D.C. 1992). Every other
court to address this issue since Franklin has reached the same conclusion.
See, e.g., Wood v. Spring Hill College, 978 F.2d 1214, 1219-20
(11th Cir. 1992); J.L. and K.P. v. Social Sec. Admin., 971 F.2d 260, 264 (9th Cir.
1992); Kraft v. Memorial Medical Center, 807 F. Supp. 785, 790 (S.D. Ga.
1992); Ali v. City of Clearwater, 807 F. Supp. 701, 704-05 (M.D. Fla. 1992);
Tanberg v. Weld County Sheriff, 787 F. Supp. 970, 972 (D. Colo. 1992)
Like title IX, section 504 was designed to protect the civil rights of
victims of discrimination. And as with title IX, Congress has had ample
section 504, even after many courts have held that damages are available
9
under the statute,14 Congress has implicitly confirmed that damages are, in
fact, available.
Because title II of the ADA has adopted the rights and remedies
available under section 504, the Franklin analysis also compels the
conclusion that compensatory damages are available under title II.15 As with
section 504 and titles VI and IX, there is no indication whatsoever, in either
the statutory language or the legislative history of title II, that Congress
contrary, the legislative history of title II suggests that Congress intended the
10
As with section 504, there is also a private right of action
for persons with disabilities, which includes the full panoply of
remedies.17
of the state. Hans v. Louisiana, 134 U.S. 1, 15 (1890). But the District of
11
Moreover, even if it applied to the District of Columbia, the eleventh
amendment would not bar a suit for damages under either title II of the ADA
or section 504. The Supreme Court has held that Congress may abrogate the
eleventh amendment without the states' consent when acting pursuant to its
427 U.S. 445, 456 (1976) (Congress has the authority to override states'
amendment); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)
(Congress must make "its intention unmistakably clear in the language of the
statute").
original). See also 28 C.F.R. § 35.178; S. Rep. No. 116, 101st Cong., 1st Sess.,
at 184 (1989); and House Comm. on Educ. and Labor, 101st Cong., 2d Sess.,
U.S.C.C.A.N. at 421.
12
Similarly, in the Civil Rights Remedies Equalization Amendment of
immunity under the eleventh amendment for cases arising under section
504.19
13
IV. Conclusion
compensatory damages under both title II of the ADA and section 504 of the
Rehabilitation Act and, further, that the eleventh amendment is not a bar to
April __ , 1993
Respectfully submitted,
By: ________________________________
JOHN L. WODATCH
D.C. Bar #344523
JOAN A. MAGAGNA
D.C. BAR #910885
SHARON PERLEY*
Attorneys
U.S. Department of Justice
Civil Rights Division
Public Access Section
P.O. Box 66738
Washington, D.C. 20035-6738
Tel:_____________(202) 307-0663