Last week my schedule was completely impossible, so I was not able to get a blog up during the work week. Finally, I got some time to do it now. The blog entry for the last week is a Statement of Interest filed by the DOJ in A.V. v. Douglas County School District Re-1. If the name Douglas County School District is familiar, that is because it frequently comes up in disability rights matters. For example, the Endrew decision, here, involved the Douglas County School District. In the Statement of Interest, the DOJ goes all in on the ADA being a nondelegable duty. That the ADA is a nondelegable duty should not surprise readers of this blog because we previously discussed that here, and I return to the concept frequently. The principle is so important that I continually list the ADA being a nondelegable duty blog entry in my greatest hits section even though it is never one of the 10 most popular blog entries of a particular year. As usual, the blog entry is divided into categories and they are: facts; DOJ reasoning that the ADA is a nondelegable duty; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Finally, there are a couple of times in this blog entry where I am paraphrasing very closely DOJ interpretive guidance stated in the Statement of Interest, so you do not see quotations there but very close paraphrasing.
In this particular case, three school resource officers behaved in a way that arguably violated a student rights as a person with the disability by doing among other things interrupting the de-escalation process with the school psychologist, arresting him, and leaving him handcuffed and locked in a patrol car for several hours. The original complaint alleged that the school district was a joint employer, but the court threw that complaint out. The student then filed an amended complaint saying that the school district had a nondelegable duty to the student and was therefore liable for the actions of the security guards.
DOJ’s Reasoning That the ADA Is a Nondelegable Duty
- Title II of the ADA creates an affirmative obligation on a public entity to avoid discrimination in the provision of any of services, programs, and activities. This obligation remains when providing its services, programs, or activities either directly or through contractual or other arrangements.
- School districts cannot divest themselves of responsibility for the lawful administration of any of their programs by contracting with school resource officers, private security guards, or any other contractors.
- Title II of the ADA covers all services, programs, or activities of the public entity and draws no distinction between a program provided directly by the public entity and a program provided through a contractual or other arrangement.
- 28 C.F.R. §35.130(b)(1) provides that a public entity may not discriminate in the provision of its services, programs, and activities whether directly or through contractual licensing, or other arrangements. 28 C.F.R. §35.130(b)(3) [there is a typo in the Statement of Interest whereby this is listed as §36.130(b)(3), which is not correct].
- The title II regulations are entitled to substantial deference per Chevron.
- Commentary to the title II implementing regulations, 28 C.F.R. part 35, app. B (commentary §35.102, states: all governmental activities of public entities are covered, even if they are carried out by contractors. For example, a state is obligated by title II to ensure its services, programs, and activities of a state park that is operated under contract by a private entity are in compliance with title II’s requirements. The private entity operating the inn would also be subject to the obligation to public accommodations under title III of the act and the department’s title III regulations at 28 C.F.R. part 36.
- Similarly, DOJ has elaborated in the context of correctional facilities at 28 C.F.R. part 35, app. A (commentary §35.152), that: title II requirements apply to correctional facilities used by State or local governmental entities, irrespective of whether the public entity contracts with another public or private entity to build or run the correctional facility. If a prison is occupied by State prisoners and is inaccessible, the State is responsible under title II of the ADA. The same is true for a county or city jail. In essence, the private builder or contractor operating the correctional facility does so at the direction of the governmental entity. Further, even if the State enters into a contractual, licensing, or other arrangement for correctional services with a public entity having its own title II obligations, the State is still responsible for ensuring the other public entity complies with title II in providing the services.
- The department’s regulatory guidance reflects the agency’s authoritative, expertise-based, fair and considered judgment per Kisor v. Wilkie, which we discussed here. In fact, in Kisor, the majority opinion used DOJ’s regulatory guidance to the ADA as an example of where Auer deference applies after Kisor.
- The plain text of the ADA, its implementing regulations, and regulatory guidance make clear that a public entity cannot contract away its legal obligations. Instead, a public entity maintains its legal duty and remains liable for harm in its services, programs, and activities regardless of how it decides to structure or staff those services.
- The 10th Circuit has held with respect to the Colorado Department of Corrections, that a public entity cannot contract away at liability under title II of the ADA, and that the State Department of Corrections could be held liable for discrimination by a subcontractor, a community correction program. In that case, the 10th Circuit said that the state entity’s services include a program undertaken to third parties by means of contracting and other arrangements. The 10th Circuit also said that while the state entity could farm out operation to others, doing so would not prevent liability under the ADA or the Rehabilitation Act. Further, that particular decision did not even discuss joint employees because such a finding was not necessary to find Colorado liable.
- The Ninth Circuit has also said that the State of California continued with its title II duty to state inmates who were housed in county jails and could be held liable for a county’s failure to provide those inmates with reasonable accommodation for their disabilities.
- A District Court in Indiana held that title II obligations apply to the State of Indiana when it contracted with a private company to provide medical services to inmates. Other district courts have held similarly in a variety of situations.
- Douglas County’s reliance on a title I case doesn’t work because this is not a title I case but a title II case. (See also thought/takeaways #3).
- DOJ has made clear in a regulatory guidance that even if a State enters into a contractual, licensing or other arrangement for services with a public entity that has its own title II obligations, the State is still responsible for ensuring that the other public entity complies with title II in providing those services. As such, the fact that the sheriff’s office also has responsibility under title II, and may be liable for the security resource officer’s action does not negate the school district’s own legal responsibility to ensure that all of its activities, including a school safety program, are carried out in a nondiscriminatory manner. In this kind of situation, imposing title II obligations on both entities is entirely consistent with the text and the purpose of the ADA.
- The school district trying to carve out certain types of contracts from its liability doesn’t hold up because there is no textual basis in the ADA or in its implementing regulations to support such a limitation.
- While a school district is certainly primarily responsible for providing educational services, and engages in many other services, programs, or activities, including transporting children, preparing and serving food, promoting student health, and constructing and maintaining buildings, a school district can no more allow the contractors it selects to provide those services to discriminate then it could allow discrimination by a person contracted by the school to proctor its examinations.
- A school district is required to use all its authority to address and fight discrimination occurring within any of its programs, services, or activities. The amended complaint alleges that the security resource officers program is a program of the school district and that the building principal is responsible for the supervision and implementation of that program.
- This is not the first time we have talked about nondelegable duty. As I mentioned above, one of my most important blog entries even if it is not the most popular from year to year is this one where the Nevada Supreme Court held that the ADA was a nondelegable duty, here. That case did not involve a public entity but rather an architectural firm, which is a title III entity.
- The DOJ with this Statement of Interest has gone all in on the ADA being a nondelegable duty.
- In addition to the title II regulations discussed in this blog entry, title III’s final implementing regulations, 28 C.F.R. §36.204, and title I’s final implementing regulations, 29 C.F.R. §1630.6, both prohibit using contracting to discriminate against persons with disabilities with respect to individuals served by the covered entity.
- It is not unusual for entities to contract out for all kinds of reasons. If doing so, an entity should strongly consider a reimbursement agreement rather than indemnification agreements. A reimbursement agreement involves the entity paying out everything as a result of what went wrong and then seeking reimbursement later. Whereas an indemnification agreement involves an entity shifting off its responsibility to somebody else. The former may very well work, see here for example, but the latter, see here, definitely will not.
- As a result of Kisor explicitly using the DOJ regulatory guidance as an example of regulatory interpretations passing Auer deference, the DOJ interpretations of their final implementing regulations of the ADA have to be taken very seriously. It also means that DOJ’s ADA final implementing regulations get Chevron deference.
- Can you be both a title II and a title III entity simultaneously? I don’t see it unless the title III entity is a state actor per this case.
- The DOJ Statement of Interest discussed in this blog entry has huge implications with respect to the relationship between licensing boards and professional recovery programs, which is a topic we discussed here.
- As a matter of preventive law, it would be wise to just assume that the ADA imposes a nondelegable duty regardless of whether a title I, title II, or title III is involved.