When Cummings v. Premier Rehab Keller was decided, discussed here, it was inevitable that eventually courts would start addressing the issue of whether Title II of the ADA allows for emotional distress damages. During Cummings oral argument, a couple of the Justices anticipated that, and court decisions are beginning to come on this issue. The latest, which is the blog entry for this week, is a published decision from the 11th Circuit in A.W. by and through J.W v. Coweta County School District, here, decided on August 7, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that Title II of the ADA does not allow for emotional distress damages; court’s reasoning that plaintiffs are entitled to other kinds of relief besides emotional distress damages; court throws out §1983 claim against the principal; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts

 

According to the complaint, various students with disabilities were physically and mentally abused in a classroom by their special education teacher. Georgia law requires school administrators with reasonable cause to suspect that child abuse has occurred to report the suspected abuse to authorities immediately but in no case later than 24 hours from the time there is reasonable cause to believe that suspected child abuse has occurred. The district superintendent acknowledged that the principal failed to report the abuse allegations as promptly as state law required. The principal was suspended for two days without pay and required to undergo training about the reporting requirements. The student sued the school district and the principal alleging violations of due process and Title II of the ADA. In the complaint, they sought damages for mental anguish and pain and suffering and special damages for the federal claims, as well as punitive damages from the principal under §1983. A few months after the student sued, the Supreme Court decided Cummings v. Premier Rehab Keller. Accordingly, the school district and the principal moved to dismiss the complaint for failure to state a claim arguing that the Supreme Court decision prevents emotional distress damages in Title II matters.

 

II

Court’s Reasoning That Title II of the ADA Does Not Allow for Emotional Distress Damages

 

  1. Title II of the ADA expressly incorporates the remedies of the Rehabilitation Act. The Rehabilitation Act, in turn, incorporates the remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964. So, the remedies available under Title VI are the same remedies available under the Rehabilitation Act and Title II.
  2. Since Cummings held that emotional distress damages are not recoverable under the Rehabilitation Act, it necessarily follows that emotional distress damages are not recoverable under Title II.
  3. The Supreme Court in Barnes v. Gorman, here, rejected the argument that although punitive damages are unavailable under Title VI, they remain available under the ADA because it was not enacted under the spending clause. The Supreme Court explained that the ADA could not be clearer that its remedies are the same as those of the Rehabilitation Act, which is spending clause legislation. The incorporation of those remedies make discussion of the ADA’s status as a non-spending clause tort statute quite irrelevant.
  4. Barnes requires the remedies available under Title II of the ADA to mirror the remedies under Title VI of the Civil Rights Act of 1964.

 

III

Court’s Reasoning That Plaintiffs Are Entitled to Other Kinds of Relief besides Emotional Distress Damages

 

  1. Requesting an improper remedy is not fatal to a claim because a complaint is sufficient if it alleges facts establishing that the plaintiff is entitled to any relief the court can grant.
  2. Just because a plaintiff might misconceive a remedy, it does not warrant dismissal of the complaint unless he is entitled to no relief under any state of facts.
  3. A district court must consider whether a complaint that seeks an improper remedy might warrant another form of relief.
  4. Rule 54(c) of the Federal Rules of Civil Procedure states that a district court must grant the relief to which each party is entitled, even if the party had not demanded that relief in its pleadings, when it enters any final judgment except a default judgment.
  5. The selection of an improper remedy in the demand for relief is not fatal to a party’s pleading if the statement of the claim indicates the pleader may be entitled to relief of some other type.
  6. Other relief that was possible for the plaintiffs include: damages for physical harm; compensation for loss educational benefits; remediation; and nominal damages.

 

III

Court Throws out §1983 Claim against the Principal

 

  1. For a supervisor to be liable for subordinate’s constitutional violation, that person must have participated in violating the student rights or caused them to suffer a violation of such rights at the hands of the teacher.
  2. Students are in a noncustodial relationship with the state.
  3. In a noncustodial relationship situation, conduct by a government actor violates substantive due process only where the act can be characterized as arbitrary or conscience shocking in the constitutional sense. Therefore, the principal’s liability as a supervisor turns on whether she participated in or caused conscience shocking conduct. Her independent liability turns on her alleged deliberate indifference to the alleged abuse shocking the conscience.
  4. The 11th Circuit has never held that deliberate indifference of an official in a noncustodial setting can shock the conscience.
  5. Allegations of the teacher’s intentional abuse are ordinarily the problems of state tort law and not constitutional law.

 

IV

Thoughts/Takeaways

 

  1. At oral argument in Cummings, a couple of the Justices expressed concern about how holding that emotional distress damages were not available under the Rehabilitation Act might mean that they are not available under Title II of the ADA. Those concerns have come to pass.
  2. The problem with saying that the ADA is a Civil Rights Act and the Rehabilitation Act is a spending clause act and that makes a difference for emotional distress damages, is Barnes v. Gorman where the Supreme Court explicitly rejected that argument. So, a majority of the Supreme Court would have to somehow distinguish Barnes if it were to say that the spending clause v. civil rights distinction matters. I can’t imagine this Supreme Court doing that. It is also for this reason that I will be surprised if the plaintiffs ask for review by the Supreme Court.
  3. Shortly after Cummings, legislation was introduced to make clear that emotional distress damages were available under §504 of the Rehabilitation Act as well as Title II of the ADA. Whether that legislation will go anywhere may depend upon the outcome of the election. It certainly will not go anywhere before then. In the absence of legislation, it is likely you will see more and more courts throwing out emotional distress damages in Title II cases.
  4. Just because emotional distress damages get thrown out, doesn’t mean that other damages are not in play. Damages might include such things as: physical harm; compensation for loss educational benefits; remediation; and nominal damages. Any of those remedies would also get attorney fees for the plaintiff. It is possible that there might be other remedies as well.
  5. It is very difficult for plaintiffs to find attorneys to prosecute Title II cases. The inability to obtain emotional distress damages will only make the number of attorneys willing to take on Title II cases even smaller.
  6. Incredibly high standard for holding a supervisor liable for unconstitutional conduct that occurs in a noncustodial setting.