Before getting started on the blog entry of the day, I wanted to wish everyone with teams in the baseball playoffs good luck. I actually have three teams in the baseball playoffs: brave; cubs; and White Sox. No, I am not watching nine hours of baseball today, but I am recording all three of my teams. On the football side, my Bears are 3-0 while the Falcons are 0-3. The Falcons recently became the only team in NFL history to blow big leads in two consecutive games. Good luck to your baseball teams and to your football teams. Hope all of the players as well as all of my readers can stay healthy and safe.

 

Turning to the blog entry of the day, with the nomination of Judge Amy Coney Barrett to the Supreme Court I wanted to take a look at her cases dealing with persons with disabilities, and I also wanted to see if I could figure out her judicial philosophy. I have done similar blog entries for both Justice Gorsuch16868193119119119119119119 and for Justice Kavanaugh16969194120120120120120120. This process proved to be a little bit different than the other two. In particular, I couldn’t figure out much about her way of approaching cases from reading the opinions on disability rights. However, my research took me to a Law Review article that she wrote in 2010 entitled “Substantive Canons and Faithful Agency,” which appeared in the Boston University Law Review in 2010, and that article gave me some indication about how she goes about looking at cases. So, the blog entry is essentially divided into three categories and they are: disability (ADA or Rehabilitation Act cases that she has been involved with); her judicial philosophy; and thoughts takeaways. The reader is free to focus on any or all of the categories. With respect to disability rights cases that she has been involved with, the only cases I could find were cases involving the ADA or the Rehabilitation Act and a couple of excessive force cases or deliberate indifference to medical needs of prisoners. I did not find anything involving the Fair Housing Act or the Air Carrier Access Act for example. My search for cases involved using a casetext search, “Judge /7 Barrett and disability or disabled and 504 or ADA.” Then, Law Office Space blog posted a link to SCOTUS blog, which had a page listing all her cases, here17070195121121121121121121. Interestingly, SCOTUS blog missed one case, McCray v. Wilkie, which we have discussed previously in our blog and will mention later as well.

 

I

Cases

 

1. Banks v. Patton17171196122122122122122122, a nonprecedential disposition order from July 26, 2018: In this case, a prisoner claimed that the jail did not reasonably accommodate his disabilities. Judge Barrett was part of the opinion holding that the prisoner seeking a change in security classification to be housed in a different location in the prison was asking for a fundamental alteration to the program. It also held that the accommodations were denied for reasons other than disability. Finally, the opinion held that the prisoner should not have had summary judgment entered against him for failure to exhaust administrative remedies as the prison never responded to his claims.
2. Carello v. Aurora Policeman Credit Union17272197123123123123123123, unpublished decision decided July 15, 2019: In this case, the plaintiff sued the credit union for website inaccessibility. Judge Barrett wrote the opinion holding that the plaintiff had no standing since he could never be a member of the credit union. There really isn’t anything revolutionary about this case as my colleague Richard Hunt has discussed many times in his blog. The thing to note here is that the inability to become a member only works for a plaintiff that could never become a member. It is entirely possible that a membership only organization may wind up in a situation where the plaintiff using a screen reader could conceivably become a member. In that case, the standing strategy doesn’t work.
3. Cook County v. Wolf17373198124124124124124124, unpublished decision decided June 10, 2020: This case involved the public charge rule. Judge Barrett dissented and said that the public charge rule was within the authority of the Department of Homeland Security. However, the case should have been remanded to see if the public charge rule violated other laws, such as but not limited to the Rehabilitation Act of 1973.
4. Graham v. Arctic Zone IcePlex, LLC17474199125125125125125125, unpublished decision decided July 23, 2019: This case has been previously discussed recently by my colleague Eric Meyer, a partner with Fisher Broyles, in his blog17575200126126126126126126. Here, a plaintiff sued his employer for failure to accommodate his disability. Judge Barrett wrote the opinion and held: 1) plaintiff did not provide sufficient information to the employer to determine the necessary accommodations; 2) just because an employer does not act on one problem does not forfeit the employer’s right to act later; and 3) the plaintiff did not furnish sufficient evidence to indicate bad faith on the part of the employer with respect to intentional discrimination.
5. Grussgot v. Milwaukee Jewish Day School Inc.17676201127127127127127127, 882 F.3d 655, decided February 13, 2018: This case involved the ministerial exception. Per curiam opinion that Judge Barrett joined. The opinion anticipate the Supreme Court decision in Lady of Guadalupe. In particular, the plaintiff was found to be a minister and language used in the opinion included: the plaintiff had a role connected to the employer’s religious mission; plaintiff participated in shaping the practice of faith; and the school intended her role to be a religious one. Since the opinion occurred before Lady of Guadalupe, the opinion went through all four opinions in Hosanna Tabor17777202128128128128128128 and found that the 2 to 2 split resolved itself in favor of the plaintiff being a minister.
6. King v. Hendricks County Commissioners17878203129129129129129129, 954 F.3d 981, decided March 31, 2020: In this case, Judge Barrett joined an opinion by Judge Wood upholding a summary judgment and holding the following in an excessive force case involving a person with a disability. In particular, the opinion said that no reasonable accommodations were proposed by the plaintiff. Also, there is a discussion of but for causation, but that discussion in my opinion has now been superseded by Bostock, which we discussed here17979204130130130130130130.
7. Marx v. Richland County18080205131131131131131131, nonprecedential disposition decided September 23, 2019: This case involved a failure to accommodate. Judge Barrett was part of an opinion holding that the plaintiff never triggered the interactive process because he never came out and said the accommodation was needed and why.
8. Mayle v. City of Chicago18181206132132132132132132, nonprecedential disposition decided April 29, 2020. In this case, plaintiff had a hog that he trained to engage in recognition and response. He wanted to take the hog to public places just like a person could take a dog that has been trained to engage in recognition and response to public places. Judge Barrett joined an order saying: 1) the right to a service animal was not a fundamental right; 2) persons with disabilities are in the rational basis class; and 3) a rational basis existed for limiting service animals to dogs so the Department of Justice title II and title III regulations excluding service animals other than dogs are kosher. I just want to point out that the hog in this case would undoubtedly be considered an assistance animal under the latest HUD circular, which we discussed here18282207133133133133133133.
9. Moens v. City of Chicago18383208134134134134134134, nonprecedential disposition decided May 20, 2020. In this case Judge Barrett joined an order saying that attendance was an essential function of the job and there was no evidence of a hostile work environment. I note that this decision came down after the pandemic but well after the case had been argued. Whether attendance is an essential function of the job is no longer subject to the same assumptions in place before the pandemic.
10. Chaudry v. Amazon.com.Dedc, LLC18484209135135135135135135, a nonprecedential disposition decided February 12, 2019. In this case, she joined an order dismissing the case. Basically, plaintiff was pro se and simply could not craft an argument or a complaint that could be understood by the court.
11. Parent v. Taylor18585210136136136136136136, 914 F.3d 467 decided January 22, 2019: This case involved a system in Wisconsin that allowed people to transfer from one school to another out of their district. In order to be able to do the transfer, a school had to find first that they had excess capacity. Plaintiff challenged that. Judge Barrett joined an opinion written by Judge Sykes saying that whether excess capacity existed was an essential eligibility requirement of the program. Also, removal of the excess capacity requirement would fundamentally alter the nature of the program. Finally, Judge Sykes quoting from another case stated that federal law forbids discrimination based upon stereotypes about a handicap, but it does not permit decisions based on the actual attributes of the handicap.” I must confess I am at a loss to understand the distinction between stereotypes and attributes. I can see how Judge Sykes could say that excess capacity was an essential eligibility requirement and that getting rid of that requirement would fundamentally alter the nature of the program.
12. Pegues v. Coe18686211137137137137137137, nonprecedential disposition decided April 11, 2019: In this case, Judge Barrett joined an order finding that plaintiff did not make a showing that the prison was deliberately indifferent to his medical needs. Importantly, the case did not involve a failure to accommodate or it is possible that deliberate indifference may have been looked at differently as we discussed here18787212138138138138138138.
13. Penny v. Lincoln’s Challenge Academy18888213139139139139139139, a nonprecedential disposition decided August 27, 2020: In this case, Judge Barrett joined an order affirming summary judgment saying that there was no evidence connecting any dislike for the plaintiff with her protected activity. The only thing I will say about this case is that there is a vibe that summary judgment can be used to screen out cases. Many Judges take that approach, though not all.
14. Pierri v. Medline Industries18989214140140140140140140, unpublished decision decided August 6, 2020: This case involved an association discrimination claim. Judge Barrett joined an opinion by Judge Wood holding that no adverse action had occurred. The decision also talks about how association claims in the Seventh Circuit fall into three categories but that list was not exhaustive. We discussed the Seventh Circuit’s approach to association discrimination claims here19090215141141141141141141.
15. Sansone v. Brennan19191216142142142142142142, 917 F.3d 975 decided March 6, 2019. In this case, Judge Barrett wrote the opinion holding that the jury instruction on reasonable accommodation given by the lower court was kosher, but the court erred in its ruling regarding expert testimony.
16. Youngman v. Peoria County19292217143143143143143143, 947 F.3d 1037 decided January 24, 2020. In this case, Judge Barrett joined an opinion by Judge Rovner holding that the plaintiff could not link their symptom needing accommodation with the disability alleged.
17. McCray v. Wilkie19393218144144144144144144, unpublished decision from July 16, 2020. In this case, which we discussed here19494219145145145145145145 , Judge Barrett joined an opinion holding that unreasonable delay in providing a reasonable accommodation is actionable.

 

II

Judge Barrett’s Approach

 

As mentioned before, you simply can’t by reading these decisions get a sense of how Judge Barrett approaches problems. Part of that is that a lot of the opinions involving people with disabilities were opinions she joined and did not write herself or were nonprecedential dispositions. Also, the opinions are relatively straightforward situations. So, where do you go to get a sense of how she approaches analyzing cases. I must admit I was stumped until in my research for trying to figure out how she might view Chevron deference, I got led to her law review article “Substantive Canons and Faithful Agency,” published in the Boston University Law Review in 2010. In college, I took a course called legal theory and reading this law review article reminded me very much of what I read in that course. It is a 75 page law review article, but I can condense it into the following key points. Before getting there, a word about canons of construction is in order. Canons of construction, as she points out in her law review article, have been around from the very beginning of this country. They are used in a variety of purposes. Sometimes, as a tiebreaker to figure out situations that are unclear. Other times they are used to carry out values when the statutes seem to violate those. She considers herself a textualist and so the use of these Canon can be problematic for someone that relies on text first. She also believes that Judges must be faithful to the legislature when it comes to laws that they make because it is the legislature’s job to make the laws. Also as a result of Marbury v. Madison, she also believes that the courts must be faithful to the Constitution as well. So, after her exhaustive research she concludes the power to develop and apply substantive canons (something that could change how a case is decided rather than just a procedural item), of construction is consistent with constitutional structures subject to important limitations below.

 

1. The Constitution affords federal courts the ability to part from the best interpretation of a statute in favor of one that is less plausible yet still bearable because the power to do that derives from the power of judicial review. However, a court may exercise this power only in pursuit of constitutional values.
2. Canons promoting values beyond the Constitution may be employed only as a presumption guiding the choice where equally plausible interpretations of the statute exist.
3. Language pushing canons must be tied to relatively specific constitutional norms and must be consistent with the constitutional value they purport to promote.
4. Canons permitting a court to qualify clear text run headlong into the obligation of faithful agency and are inconsistent with the constitutional structure.
5. Absent a clear statement, a court will not interpret a statute to raise a serious constitutional question nor will it interpret a statute to abrogate customary international law.
6. No justification exist for departing from the plain text of a constitutional statute.

 

III

Thoughts/Takeaways

 

1. A couple of these cases might be decided differently now that Bostock has been decided. As we discussed here19595220146146146146146146, Bostock has fundamentally changed what but for causation means in the context of discrimination cases.
2. Her opinion upholding the lack of standing in the credit union case is straightforward. As mentioned earlier in this entry, the strategy doesn’t work if a plaintiff could conceivably become a member of the credit union.
3. Nothing on Auer or Chevron deference. I do think you can say from §II of this blog entry that she would not like Auer deference and would support getting rid of it or severely narrowing it as the Supreme Court did in Kisor v. Wilkie, which we discussed here19696221147147147147147147. Regarding Chevron deference, that is a closer call because all legislation has an enabling clause in them that allows a particular agency to implement the regulation. That kind of implementing clause might give someone who is a believer in faithful agency that Chevron deference makes perfect sense. Some States, such as Illinois, have a separate agency serving under the legislature whose purpose is to ensure that proposed regulations are consistent with legislative intent. One wonders if Judge Barrett would approve of such arrangements as being constitutional because it ensures faithfulness to the legislature, which has the ultimate authority for making laws.
4. Judging from Grussgot as well as her strong religious faith, she is likely to be a strong supporter of reading the ministerial exception broadly.
5. Unclear as to where she stands with respect to summary judgment motions. Many Judges use it as a screen out tool to prevent only but the best cases from getting to the jury. Justice Gorsuch is on the other hand does not like summary judgment tools at all. He looks for genuine issue of material facts and does not care for how summary judgment is often used as a screen out tool.
6. I considered blogging at one point in time on the hog case. I may have even alluded to it in a comment to a previous blog entry. Keep in mind, the hog would be an assistance animal under the HUD circular. So, while the plaintiff could not take his hog out into public places, he certainly is able under the latest HUD circular19797222148148148148148148 to have the hog at his place of residence as an assistance animal.
7. Any judicial opinion involving facts before March 2020 holding that attendance is an essential function of the job is suspect in light of what has happened since. As I have mentioned previously in the blog, I expect lots of litigation over whether attendance is a personal preference or an essential function of the job.
8. Deliberate indifference for purpose of medical needs in a prison is not the same as deliberate indifference for purposes of pursuing damages against a title II entity for failure to accommodate. For the leading case discussing damages under title II of the ADA, see this blog entry19898223149149149149149149.
9. Likely to go before the Supreme Court is just how to deal with association discrimination claims. Must they fit into one of three categories as the Seventh Circuit suggests, or can association discrimination claim go beyond those three categories. It is unclear where she stands on that.
10. Also, not clear on how close the link between the disability and the accommodation must be. For example, how close of a link does have to be to the essential functions of the job where an individual needs a service animal in order to function in the mainstream world. That service animal is going to do a lot of different things that have nothing to do with an individual’s job. However, an individual could not do the job but for the service animal.
11. Justice Scalia’s impact on jurisprudence has been absolutely huge. As Justice Kagan has said, “we are all textualist now.” However, what that means is not the same for every single judge.. For example, it is pretty clear from reading the law review article discussed in §II of this blog entry that Judge Barrett would not have agreed with Justice Gorsuch in Bostock.
12. Unclear as to what equal protection class Judge Barrett would place persons with disabilities into.
13. When it comes to persons with disabilities, what I have found is that people who get disability so to speak either have a disability themselves or are closely associated with someone who does. It has been widely reported that Judge Barrett has a child with Down syndrome. How that might seep into her disability related decisions is far from clear.

 

Voting has already started in many places. Regardless of your views, make sure you vote.