People with disabilities should be able to sue the government for relief when federal agencies discriminate against them, Professor Margo Schlanger argues in a recent article.
When a federal entity engages in illegal discrimination, based on a disability or other protected class, suing for damages is not an option due to governmental immunity. However, disability law demands that suing for an injunction to rectify the violation should remain an option, Schlanger says.
Yet courts don’t always support that view—part of an ongoing erosion of the right to win relief from government discrimination, Schlanger wrote in a paper in the Boston University Law Review.
“The government must be bound by the rule of law,” she said. “And that requires that prospective relief against federal agencies remain available in federal courts. The broad point is that we really shouldn’t give that up.”
Schlanger—the Wade H. and Dores M. McCree Collegiate Professor of Law—recently answered five questions about the argument detailed in her article:
1. How big a problem is disability discrimination by federal agencies?
It varies by the agency and the program, but overall there’s a significant problem. The disability anti-discrimination statutes do more than prohibit intentional discrimination—they require accommodation. You have to think about people in all different kinds of situations, and you have to make sure that your programs and services and activities are accessible to all of them.
Obviously this means that government facilities need to be physically accessible. But programmatic accessibility is just as important. Federal prisons, for example, provide education and programs of various kinds as rehabilitation and as part of getting access to parole. These need to allow full access by people with learning disabilities, mobility disabilities, vision impairments, and hearing impairments.
Sometimes federal programs find the whole thing to be kind of a pain, so they approach access in a way that’s grudging and small. For example, a veterans hospital might provide interpreters if the patient is deaf, but not if their caregiver is deaf. Other times, they just don’t think about the varied needs of people using their services and end up excluding people inadvertently—but just as definitely.
2. Section 504 of the Rehabilitation Act of 1973 forbids disability discrimination in federal programs and activities. Why is that not enough?
In Lane v. Peña in 1996, the Supreme Court held that there is no damages remedy available under Section 504 against the federal government. As any torts professor would tell you, that sets up a very bad incentive structure. If the federal government doesn’t have to pay damages when it screws up, that gives it less reason not to screw up.
Recently, an argument has surfaced that says not only does Section 504 not provide a right to damages against federal agencies, it doesn’t even provide a right to prospective relief, via an injunction. If that were correct, the statute would become basically advisory—a goal to aspire to, rather than a source of individual rights.
3. If sovereign immunity means people can’t sue for damages, why would it not also prohibit injunctive relief?
There are several reasons. For one, I think the Rehabilitation Act itself is properly read to waive sovereign immunity for injunctions.
In addition, there’s an express waiver of sovereign immunity in the Administrative Procedure Act, and that waiver of sovereign immunity doesn’t only apply to APA cases but much more generally to injunctive cases.
Also, under what’s often called “the Ex Parte Young fiction,” lawsuits against individuals in their official capacities don’t count as suits against the sovereign for purposes of sovereign immunity.
4. Your article also explores whether a necessary cause of action exists in this type of case, and you conclude that it does. Could you elaborate?
I offer three paths to finding a cause of action. The first is based on Section 504 itself. The second is based on courts’ inherent equitable authority—the idea that aside from specific exceptions, relief is traditionally available to enforce federal law. The third is under the Administrative Procedure Act.
In many ways, these three theories reach the same place: Each allows judicial review of disability discrimination claims involving federal programs and activities, and each authorizes prospective relief when it is appropriate.
However, litigants rarely plead and brief all three theories. As a result, they may find their lawsuit dismissed—not because there’s no cause of action but because the court is persuaded a different theory is correct. In my view, any or all of the three theories are sufficient to authorize injunctive lawsuits.
5. Your article includes an appendix with tools for use in actual lawsuits, such as a model complaint against a federal agency and a list of relevant cases. Why was that important to include?
Civil rights lawyers and disability rights lawyers get handed a set of really complex federal court questions, and they have to get past jurisdictional hurdles before they get down to the business of actually litigating their cases.
Their experience often lies elsewhere; they are experts at explaining statutory requirements, why discrimination is harmful, and how the defendant agency can and should do something better. For some of them, they don’t have so much exposure to sovereign immunity and causes of action—the stuff covered in a law school Federal Courts class, rather than in a disability law or civil rights statutes class. Yet you can lose cases on those Fed Courts issues.
So I thought my article’s appendix would be a useful tool. Not all my scholarship is directly relevant to litigation, but this piece is, so I wanted to make it as easily accessible as possible. And a few litigators have written me thank-you notes, which has been very nice.
When a federal entity engages in illegal discrimination, based on a disability or other protected class, suing for damages is not an option due to governmental immunity. However, disability law demands that suing for an injunction to rectify the violation should remain an option, Schlanger says.
Yet courts don’t always support that view—part of an ongoing erosion of the right to win relief from government discrimination, Schlanger wrote in a paper in the Boston University Law Review.
“The government must be bound by the rule of law,” she said. “And that requires that prospective relief against federal agencies remain available in federal courts. The broad point is that we really shouldn’t give that up.”
Schlanger—the Wade H. and Dores M. McCree Collegiate Professor of Law—recently answered five questions about the argument detailed in her article:
1. How big a problem is disability discrimination by federal agencies?
It varies by the agency and the program, but overall there’s a significant problem. The disability anti-discrimination statutes do more than prohibit intentional discrimination—they require accommodation. You have to think about people in all different kinds of situations, and you have to make sure that your programs and services and activities are accessible to all of them.
Obviously this means that government facilities need to be physically accessible. But programmatic accessibility is just as important. Federal prisons, for example, provide education and programs of various kinds as rehabilitation and as part of getting access to parole. These need to allow full access by people with learning disabilities, mobility disabilities, vision impairments, and hearing impairments.
Sometimes federal programs find the whole thing to be kind of a pain, so they approach access in a way that’s grudging and small. For example, a veterans hospital might provide interpreters if the patient is deaf, but not if their caregiver is deaf. Other times, they just don’t think about the varied needs of people using their services and end up excluding people inadvertently—but just as definitely.
2. Section 504 of the Rehabilitation Act of 1973 forbids disability discrimination in federal programs and activities. Why is that not enough?
In Lane v. Peña in 1996, the Supreme Court held that there is no damages remedy available under Section 504 against the federal government. As any torts professor would tell you, that sets up a very bad incentive structure. If the federal government doesn’t have to pay damages when it screws up, that gives it less reason not to screw up.
Recently, an argument has surfaced that says not only does Section 504 not provide a right to damages against federal agencies, it doesn’t even provide a right to prospective relief, via an injunction. If that were correct, the statute would become basically advisory—a goal to aspire to, rather than a source of individual rights.
3. If sovereign immunity means people can’t sue for damages, why would it not also prohibit injunctive relief?
There are several reasons. For one, I think the Rehabilitation Act itself is properly read to waive sovereign immunity for injunctions.
In addition, there’s an express waiver of sovereign immunity in the Administrative Procedure Act, and that waiver of sovereign immunity doesn’t only apply to APA cases but much more generally to injunctive cases.
Also, under what’s often called “the Ex Parte Young fiction,” lawsuits against individuals in their official capacities don’t count as suits against the sovereign for purposes of sovereign immunity.
4. Your article also explores whether a necessary cause of action exists in this type of case, and you conclude that it does. Could you elaborate?
I offer three paths to finding a cause of action. The first is based on Section 504 itself. The second is based on courts’ inherent equitable authority—the idea that aside from specific exceptions, relief is traditionally available to enforce federal law. The third is under the Administrative Procedure Act.
In many ways, these three theories reach the same place: Each allows judicial review of disability discrimination claims involving federal programs and activities, and each authorizes prospective relief when it is appropriate.
However, litigants rarely plead and brief all three theories. As a result, they may find their lawsuit dismissed—not because there’s no cause of action but because the court is persuaded a different theory is correct. In my view, any or all of the three theories are sufficient to authorize injunctive lawsuits.
5. Your article includes an appendix with tools for use in actual lawsuits, such as a model complaint against a federal agency and a list of relevant cases. Why was that important to include?
Civil rights lawyers and disability rights lawyers get handed a set of really complex federal court questions, and they have to get past jurisdictional hurdles before they get down to the business of actually litigating their cases.
Their experience often lies elsewhere; they are experts at explaining statutory requirements, why discrimination is harmful, and how the defendant agency can and should do something better. For some of them, they don’t have so much exposure to sovereign immunity and causes of action—the stuff covered in a law school Federal Courts class, rather than in a disability law or civil rights statutes class. Yet you can lose cases on those Fed Courts issues.
So I thought my article’s appendix would be a useful tool. Not all my scholarship is directly relevant to litigation, but this piece is, so I wanted to make it as easily accessible as possible. And a few litigators have written me thank-you notes, which has been very nice.
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