Arce et al v. Louisiana State et al
ORDER AND REASONS: ORDERED that Louisiana's 76 motion for judgment on the pleadings is GRANTED, and all of Lazaro's claims against Louisiana are DISMISSED WITH PREJUDICE. FURTHER ORDERED that Louisiana's 85 motion to dismiss plaintiffs' Title II claims for lack of subject matter jurisdiction is DENIED. Signed by Judge Lance M Africk on 11/16/2017.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NELSON ARCE ET AL.
LOUISIANA STATE ET AL.
ORDER AND REASONS
When Nelson and Lazaro Arce decided to challenge the Louisiana criminal
justice system’s treatment of the deaf, the Court doubts that they anticipated having
to navigate through two of the murkiest waters in American law: federalism and
separation of powers.
Yet this case raises weighty questions about the federal
government’s authority to provide private citizens with the power to haul a State
into federal court without its consent, and about the powers of executive branch
agencies to authoritatively interpret federal statutes—and thus requires nothing
less than a deep plunge into both pools.
The State of Louisiana, through the Department of Public Safety and
Corrections (“Louisiana”), moves for dismissal of Lazaro Arce’s claims against it on
the ground that neither Title II of the Americans with Disabilities Act (“Title II”) nor
§ 504 of the Rehabilitation Act of 1973 (“§ 504”) provides a cause of action based on
associational discrimination. 1 Louisiana also requests dismissal of plaintiffs’ Title II
claim on behalf of Nelson as barred by sovereign immunity—a request that the Court
construes as a motion to dismiss for lack of subject matter jurisdiction. 2 See Cantu
R. Doc. No. 76.
R. Doc. No. 85.
Serv., Inc. v. Roberie, 535 Fed. App’x 342, 346 n.3 (5th Cir. 2013). Plaintiffs oppose
both moves. 3
After considering the parties’ submissions and the applicable law, the Court
concludes that Lazaro’s claims against Louisiana warrant dismissal and that
plaintiffs’ Title II claim on behalf of Nelson may proceed.
According to plaintiffs, Nelson Arce (“Nelson”) was a deaf individual whose
“express, preferred, and most effective means of communication” was American Sign
Language (“ASL”). 4 Nelson’s proficiency in written English was allegedly “limited.” 5
Lazaro Arce (“Lazaro”) is Nelson’s father. 6
On February 9, 2015, Judge Michael Mentz of the Twenty Fourth Judicial
District Court in Jefferson Parish 7 sentenced Nelson to two years of active probation
and two years of inactive probation for a drug-related offense. 8 As a condition of his
probation, Judge Mentz ordered Nelson to enter and complete a Louisiana-approved
in-house substance abuse treatment program, and required Nelson to meet regularly
with his probation officer. 9
Plaintiffs allege that Nelson’s probation officer was aware that Nelson required
a sign language interpreter to effectively communicate, but never provided an ASL
R. Doc. No. 78; R. Doc. No. 86.
R. Doc. No. 69, ¶ 1.
5 Id. ¶ 20.
6 Id. ¶ 1.
7 The Court takes judicial notice of the court on which Judge Mentz sits. See Division
F, The Twenty Fourth Judicial District Court, http://www.24jdc.us/judges/division-f/
(last visited Oct. 23, 2017).
8 R. Doc. No. 69, ¶¶ 1, 27.
9 Id. ¶¶ 27-28.
interpreter during her meetings with Nelson. 10 Despite Nelson and Lazaro’s alleged
“repeated requests” for a qualified interpreter—one who could translate legal
terminology and concepts 11—the probation officer relied on Lazaro to interpret for
Because his probation officer did not provide a qualified interpreter at their
meetings, Nelson was allegedly unaware of the full terms and conditions of his
probation. Thus, he did not know that “leaving [Louisiana] to attend drug treatment
as ordered by [Judge Mentz] was a violation of his probation.” 13
When Nelson’s probation officer learned that Nelson had enrolled in a
California-based in-patient drug treatment program, she filed a motion to revoke
Nelson’s probation. 14 Judge Mentz granted the motion and sentenced Nelson to 90
days in the Jefferson Parish Correction Center (“JPCC”). 15
Nelson was then
incarcerated at JPCC from December 8, 2015, until March 7, 2016, during which time
JPCC inmates were allegedly entitled to two thirty-minute telephone conversations
per day. 16 JPCC did not have video phones, but did have a teletypewriter (“TTY”), 17
which is a device that enables deaf individuals to communicate by telephone. 18
Id. ¶¶ 30, 50.
See id. ¶ 57.
12 Id. ¶ 34.
13 Id. ¶ 38.
14 Id. ¶¶ 35-38.
15 Id. ¶ 39.
16 Id. ¶¶ 40-41.
17 Id. ¶¶ 41-42.
18 R. Doc. No. 42, at 3.
According to plaintiffs, JPCC officials either denied Nelson access to the TTY
machine or provided him access only once per day on a number of occasions. 19 All the
while, other JPCC inmates regularly received two thirty-minute telephone
conversations per day. 20
Further, JPCC officials allegedly penalized Nelson twice during his
incarceration for violating the rules contained in “The Inmate Handbook”
(“Handbook”), which details the behavioral expectations for inmates incarcerated at
Despite an alleged request by Lazaro that a qualified interpreter
communicate the Handbook’s contents to Nelson in ASL, Nelson never received an
ASL interpretation of the Handbook and thus did not understand the Handbook’s
rules and regulations. 22 Plaintiffs allege that Nelson never learned which rule he
violated on one of the occasions that he was punished. 23
Nelson was released from JPCC on March 7, 2016, and resumed meeting with
his probation officer. 24
Nelson’s probation officer continued to attempt to
communicate with Nelson either through Lazaro’s interpretations or written
The probation officer allegedly suggested that it was Nelson’s
responsibility to secure a qualified interpreter for their meetings if he wanted one. 26
R. Doc. No. 69, ¶¶ 42-43.
21 Id. ¶¶ 44-45.
22 Id. ¶¶ 45, 47.
23 Id. ¶ 46.
24 Id. ¶¶ 48-49.
25 See id. ¶¶ 52, 57.
26 Id. ¶ 52.
In response to these events, Nelson and Lazaro brought this lawsuit against
numerous defendants, including Louisiana, alleging violations of Title II and § 504,
and seeking both injunctive relief and money damages. Since Nelson and Lazaro’s
initiation of the case, the Court has dismissed the claims against Jefferson Parish, 27
as well as the claims for injunctive relief. 28 Moreover, in light of Nelson’s death on
May 9, 2017, 29 the Court permitted Ana Christine Shelton (“Shelton”) to be
substituted in Nelson’s place in her capacity as the natural tutrix of Nelson’s two
surviving minor children and as the administratrix of Nelson’s estate. 30
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal
of an action where the court lacks subject matter jurisdiction over the action. “A case
is properly dismissed for lack of subject matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of
Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
Any party may object to the court’s subject matter jurisdiction “at any stage in
the litigation, even after trial and the entry of judgment.” Arbaugh v. Y & H Corp.,
546 U.S. 500, 506 (2006). So too may the court raise the issue on its own initiative.
Id. Indeed, the court has an “independent obligation” to ensure in every case that
subject matter jurisdiction exists. Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). If
R. Doc. No. 42.
R. Doc. No. 80.
29 R. Doc. No. 64.
30 R. Doc. No. 68.
the court determines that subject matter jurisdiction over an action is lacking, then
the court must dismiss the action. Arbaugh, 546 U.S. at 514; see also Fed. R. Civ. P.
A court may dismiss an action for lack of subject matter jurisdiction on any one
of three different bases: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts in the record; or (3) the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.” Clark v. Tarrant County, 798 F.2d 736,
741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
Once the defendant has questioned the court’s subject matter jurisdiction, the
plaintiff bears the burden of “proving by a preponderance of the evidence that the
trial court does” possess the requisite jurisdiction to hear the case. Patterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
Where “a Rule 12(b)(1) motion is filed in conjunction with other Rule 12
motions, the court should consider the Rule 12(b)(1) jurisdictional attack before
addressing any attack on the merits.” Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001). After all, “[f]or a court to pronounce upon [the merits] when it has no
jurisdiction to do so is, by very definition, for a court to act ultra vires.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998).
Under Rule 12(c) of the Federal Rules of Civil Procedure, a party may move for
judgment on the pleadings once the pleadings are closed, as long as the party moves
“early enough not to delay trial.” “A motion for judgment on the pleadings under Rule
12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).” Doe
v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); see also Guidry v. Am. Pub. Life
Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007) (applying Rule 12(b)(6) case law in the Rule
Thus, Rule 12(c)—like Rule 12(b)(6)—permits a court to dismiss a complaint,
or any part of it, where a plaintiff has not set forth well-pleaded factual allegations
that would entitle him to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff’s factual
allegations must “raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. In other words, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570)).
A facially plausible claim is one where “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the
court to infer more than the mere possibility of misconduct,” then “the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).
In evaluating a Rule 12(c) motion, a court—as in the Rule 12(b)(6) context—
limits its review “to the complaint, any documents attached to the complaint, and any
documents attached to the motion to dismiss that are central to the claim and
referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010). In assessing the complaint, the Court must accept
all well-pleaded factual allegations as true and liberally construe all such allegations
in the light most favorable to the plaintiff. Spivey v. Robertson, 197 F.3d 772, 774
(5th Cir. 1999); Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
Where “the complaint ‘on its face show[s] a bar to relief,’” then dismissal is the
appropriate course. Cutrer v. McMillan, 308 Fed. App’x. 819, 820 (5th Cir. 2009)
(quoting Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
Louisiana moves for dismissal of plaintiffs’ Title II claims on the basis of
sovereign immunity. 31 Moreover, Louisiana moves for judgment on the pleadings as
to all of Lazaro’s claims. 32
Resolution of the sovereign immunity question will involve addressing the
viability of Lazaro’s Title II claims. The Court therefore will structure its analysis
around the issue of sovereign immunity.
The Eleventh Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.”
Despite the Eleventh Amendment’s
language targeting discrete categories of Article III diversity jurisdiction, the
Supreme Court has fashioned a doctrine of Eleventh Amendment sovereign immunity
defined by reference to “the Constitution’s structure, its history, and the authoritative
interpretations by this Court.” Alden v. Maine, 527 U.S. 706, 713 (1999); see also
R. Doc. No. 85.
R. Doc. No. 76.
Hans v. Louisiana, 134 U.S. 1, 13 (1890); cf. Meyers ex rel. Benzing v. Tex., 410 F.3d
236, 240-41 (5th Cir. 2005) (“‘Eleventh Amendment immunity’ is a misnomer, . . .
because that immunity is really an aspect of the Supreme Court’s concept of state
sovereign immunity and is neither derived from nor limited by the Eleventh
Sovereign immunity operates as “a constitutional limitation on the federal
judicial power.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98
However, unlike other aspects of the federal courts’ subject matter
jurisdiction, sovereign immunity is waivable: “a State may consent to suit against it
in federal court.” 33 Id. at 99.
In addition, Congress may abrogate State sovereign immunity when exercising
at least some of its constitutional powers. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456
(1976) (holding that Congress has the power to abrogate State sovereign immunity
under § 5 of the Fourteenth Amendment); but see Seminole Tribe of Fla. v. Fla., 517
U.S. 44, 72 (1996) (holding that Congress does not have the power to abrogate State
sovereign immunity under the Indian Commerce Clause). Abrogation requires “an
unequivocal expression of congressional intent to ‘overturn the constitutionally
guaranteed immunity of the several States.’” Pennhurst, 465 U.S. at 99. “A general
authorization for suit in federal court is not the kind of unequivocal statutory
language sufficient to abrogate the Eleventh Amendment.” Atascadero State Hosp.
v. Scanlon, 473 U.S. 234, 246 (1985), superseded by An Act to Extend and Improve
As a general matter, Louisiana has not waived its sovereign immunity from suit in
federal court. See La. R.S. § 13:5106(A).
the Rehabilitation Act of 1973, Pub. L. 99-506, 100 Stat. 1807 (1986). If Congress
wants to subject the several States to federal jurisdiction, then “it must do so
specifically.” 34 Id.
The ADA is “a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). “To
effectuate its sweeping purpose, the ADA forbids discrimination against disabled
individuals in major areas of public life, among them employment (Title I of the Act),
public services (Title II), and public accommodations (Title III).” PGA Tour, Inc. v.
Martin, 532 U.S. 661, 675 (2001).
Importantly for present purposes, Congress “invoke[d] the sweep of
congressional authority, including the power to enforce the fourteenth amendment .
. ., in order to address the major areas of discrimination faced day-to-day by people
with disabilities.” 42 U.S.C. § 12101(b)(4). To that end, the ADA declares that “[a]
State shall not be immune under the eleventh amendment to the Constitution of the
United States from an action in Federal or State court of competent jurisdiction for a
violation” of the ADA.
Id. § 12202.
In 2001, the Fifth Circuit held that this
Besides waiver and abrogation, the Supreme Court has also recognized that an
individual may bring certain kinds of federal claims directly against State officers in
their individual capacities and avoid the sovereign immunity bar. See Ex parte
Young, 209 U.S. 123, 155-56 (1908); see also Edelman, 415 U.S. at 676 (limiting Ex
parte Young actions to claims seeking prospective injunctive relief); Seminole Tribe,
517 U.S. at 75-76 (concluding Ex parte Young actions are not available where
Congress has established a remedial scheme to settle a particular claim, even if that
scheme is inoperable). In this case, Louisiana itself is a party. Unless Congress has
validly abrogated Louisiana’s sovereign immunity or Louisiana has unambiguously
waived its sovereign immunity with respect to Title II claims, plaintiff cannot assert
such claims against Louisiana in this Court. See Pennhurst, 465 U.S. at 98.
provision—although expressing Congress’s clear intent to abrogate State sovereign
immunity—did not validly do so with respect to Title II. Reickenbacker v. Foster, 274
F.3d 974, 975 (5th Cir. 2001), abrogated by Tennessee v. Lane, 546 U.S. 151 (2004).
That holding, however, was itself abrogated by the Supreme Court. See United
States v. Georgia, 546 U.S. 151 (2006); Lane, 541 U.S. at 533-34. In other words,
Congress did validly abrogate State sovereign immunity under Title II—at least in
In United States v. Georgia, the Supreme Court established a three-part
test for addressing whether Title II validly abrogates [S]tate sovereign
immunity in a given case. A court should consider “which aspects of the
State’s alleged conduct violated Title II” and then determine “to what
extent such misconduct also violated the Fourteenth Amendment.” If
the State’s conduct violated both Title II and the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity. If the
State’s conduct violated Title II but did not violate the Fourteenth
Amendment, the court must then determine “whether Congress’s
purported abrogation of sovereign immunity as to that class of conduct
is nevertheless valid.”
Hale v. King, 642 F.3d 492, 497-98 (5th Cir. 2011) (quoting Georgia, 546 U.S. at 159).
Thus, a court first subjects a plaintiff’s allegations to the familiar Rule 12(b)(6)
standard. Id. at 498. Where the allegations state a claim under Title II, but not
under the Fourteenth Amendment, a court must then consider whether Congress’s
abrogation of State sovereign immunity in a particular case exhibits “congruence and
proportionality between the injury to be prevented or remedied and the means
adopted to that end.” 35 City of Boerne v. Flores, 521 U.S. 507, 520 (1997); see also
Wells v. Thaler, 460 Fed. App’x 303, 311 (5th Cir. 2012) (per curiam).
“Congress’ power ‘to enforce’ the [Fourteenth] Amendment includes the authority
both to remedy and to deter violation of rights guaranteed thereunder by prohibiting
a somewhat broader swath of conduct, including that which is not itself forbidden by
The Court will first consider “which aspects of the State’s alleged conduct
violated Title II.” 36 Hale, 642 F.3d at 498 (quoting Georgia, 546 U.S. at 159) (internal
quotation marks omitted). As a general matter, a viable Title II requires a plaintiff
to allege “(1) that he has a qualifying disability; (2) that he is being denied the benefits
of services, programs, or activities for which the public entity is responsible, or is
otherwise discriminated against by the public entity; and (3) that such discrimination
is by reason of his disability.” Id. at 499; see also 42 U.S.C. § 12132.
As far as which aspects of Louisiana’s alleged conduct toward Nelson violated
Title II for purposes of the Georgia analysis, the parties are in unison: the decision
by Nelson’s probation officer not to procure the services of a qualified ASL interpreter
for her meetings with Nelson. 37 When it comes to which aspects of Louisiana’s alleged
the Amendment’s text.” Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,
365 (2001) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000)). “In other
words, Congress may enact so-called prophylactic legislation that proscribes facially
constitutional conduct, in order to prevent and deter unconstitutional conduct.”
Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 727-28 (2003).
36 In Hale v. King, 642 F.3d 492 (5th Cir. 2011), the Fifth Circuit observed that “[i]t
is unclear whether, under Georgia, a court is required to determine if allegations state
a claim for relief under Title II before proceeding to consider any other issue in the
three-part analysis.” 642 F.3d at 498. The Hale Court then expressly declined to
decide “whether Georgia prohibits a court from addressing the validity of Title II’s
abrogation of state sovereign immunity without first deciding that a claimant’s
allegations actually state a claim for relief under Title II.” Id.
For its part, the Court will follow the safest path and proceed through the steps
of the relevant analysis in the order outlined in Georgia.
37 See R. Doc. No. 85, at 3; R. Doc. No. 86, at 6. As the parties only identify this
particular conduct by Louisiana as violative of Nelson’s Title II rights, the Court
considers any argument that other conduct by Louisiana toward Nelson violated Title
II to be waived. Cf. Al-Ra’id v. Ingle, 69 F.3d 28, 33 (5th Cir. 1995) (concluding that
the appellant “has effectively abandoned his claim by failing to brief it”).
conduct toward Lazaro violated Title II, however, the parties could not be farther
Lazaro—who is not deaf or otherwise alleged to have a “qualifying disability”—
offers a theory of Title II (and § 504) liability based on the concept of associational
discrimination. In a nutshell, Lazaro alleges that Louisiana discriminated against
him on the basis of his association with Nelson and because of Nelson’s “qualifying
For its part, Louisiana argues that Title II (and § 504) does not permit
associational discrimination claims, relying almost exclusively on a recent opinion
out of the Northern District of Georgia. 39
Acknowledging that a regulation
promulgated by the Attorney General to implement Title II recognizes such claims, 40
see 28 C.F.R. § 35.130(g), Louisiana contends that the regulation is unlawful.41
Finally, in the alternative, Louisiana argues that Lazaro has failed to state a claim
of associational discrimination against Louisiana under Title II (or § 504). 42
Where, as here, an executive agency’s regulation interpreting a federal statute
is called into question, the Supreme Court has instructed courts to analyze the
interpretation’s permissibility through the lens of what may amount to
administrative law’s most consequential—and controversial 43—doctrine: Chevron.
See R. Doc. No. 78, at 9-11.
See R. Doc. No. 76-1, at 3-6 (discussing Todd v. Carstarphen, 236 F. Supp. 3d 1311
(N.D. Ga. 2017)).
40 Congress delegated the responsibility to promulgate regulations implementing
Title II to the Attorney General. See 42 U.S.C. § 12134(a).
41 See R. Doc. No. 76-1, at 6.
42 See id. at 7.
43 See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149-58 (10th Cir. 2016)
(Gorsuch, J., concurring) (“[T]he fact is Chevron and Brand X permit executive
Under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984), a court confronts two questions when reviewing an agency’s regulation
implementing a statute that it administers. 44 467 U.S. at 842. “First, always, is the
question whether Congress has directly spoken to the precise question at issue.” Id.
“If the intent of Congress is clear, that is the end of the matter; for the court, as well
as the agency, must give effect to the unambiguously expressed intent of Congress.”
Id. at 842-43.
To discern congressional intent, courts often rely “solely on the language of the
statute.” In re Settoon Towing, L.L.C., 859 F.3d 340, 351 (5th Cir. 2017). Indeed,
bureaucracies to swallow huge amounts of core judicial and legislative power and
concentrate federal power in a way that seems more than a little difficult to square
with the Constitution of the framers’ design.”); Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 Harv. L. Rev. 2118, 2151 (2016) (“We must recognize how much
Chevron invites an extremely aggressive executive branch philosophy of pushing the
legal envelope (a philosophy that, I should note, seems present in the administrations
of both political parties).”).
44 “[A]dministrative implementation of a particular statutory provision qualifies for
Chevron deference when it appears that Congress delegated authority to the agency
generally to make rules carrying the force of law, and that the agency interpretation
claiming deference was promulgated in the exercise of that authority.” United States
v. Mead, 533 U.S. 218, 226-27 (2001). “Delegation of such authority may be shown in
a variety of ways, as by an agency’s power to engage in adjudication or notice-andcomment rulemaking, or by some other indication of a comparable congressional
intent.” Id. at 227. Further, “[w]here the agency has not used a deliberative process
such as notice-and-comment rulemaking, or where the process by which the agency
reached its interpretation is unclear, the court cannot presume Congress intended to
grant the interpretation the force of law.” Freeman v. Quicken Loans, Inc., 626 F.3d
799, 805 (5th Cir. 2010).
In this case, the parties do not dispute that the Attorney General possesses
authority to issue regulations carrying the force of law and that the Title II regulation
at issue represents an exercise of that authority via notice-and-comment rulemaking.
See Nondiscrimination on the Basis of Disability in State and Local Government
Services, 56 Fed. Reg. 35694, 35694-95 (July 26, 1991) (explaining the relevant
“plain statutory language is the most instructive and reliable indicator of
Congressional intent.” Martinez v. Mukasey, 519 F.3d 532, 543 (5th Cir. 2008); see
also Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 283 (1996)
(Scalia, J., concurring in part and concurring in the judgment) (“The text’s the
thing.”). Thus, “[i]f the statute’s language is unambiguous,” then the “plain language”
controls “absent some resulting absurdity.” Id. at 345. Courts do not examine text
outside of context, however; a statute is read “as a whole,” and an interpreter must
remain “mindful of the linguistic choices made by Congress.” Whatley v. Resolution
Trust Co., 32 F.3d 905, 909 (5th Cir. 1994).
Where a court concludes that “Congress has not directly addressed the precise
question at issue,” then it “does not simply impose its own construction on the statute,
as would be necessary in the absence of an administrative interpretation.” Chevron,
467 U.S. at 843. “Rather, if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. “[A] court may not substitute its own
construction of a statutory provision for a reasonable interpretation made by the
administrator of an agency.” Id. at 844.
The Title II regulation challenged by Louisiana states: “A public entity shall
not exclude or otherwise deny equal services, programs, or activities to an individual
or entity because of the known disability of an individual with whom the individual
or entity is known to have a relationship or association.” 28 C.F.R. § 35:130(g).
Whether this regulation is consistent with Title II is the question to which the Court
will now turn.
The Court will begin, as it must, with the statutory text. Title II provides that
“no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. Title II defines a “qualified individual with a disability” as “an
individual with a disability who, with or without . . . the provision of auxiliary aids
and services, [among other things,] meets the essential eligibility requirements for
the receipt of services or the participation in programs or activities provided by a
public entity.” Id. § 12131(2).
In other words, Title II’s nondiscrimination provision protects a specific and
discrete class of individuals against discrimination by public entities: those with a
disability. Discrimination against a nondisabled individual by a public entity due to
his association with a disabled individual does not run afoul of the provision’s plain
language. See A Helping Hand, LLC v. Baltimore Cty., Md., 515 F.3d 356, 363 (4th
Cir. 2008) (recognizing that “Title II contains no express right to be free from
discrimination because of association with qualified individuals with disabilities”).
Title II further provides that its “remedies, procedures, and rights” are
available to “any person alleging discrimination on the basis of disability in violation
of” Title II’s nondiscrimination provision. Id. § 12133. Of course, only discrimination
by a public entity against a “qualified individual with a disability” may result in a
violation of said provision. Id. § 12132; see Lightbourn v. Cty. of El Paso, Tex., 118
F.3d 421, 428 (5th Cir. 1997) (interpreting Title II’s nondiscrimination provision to
require Title II plaintiffs to demonstrate, among other things, “that they are qualified
individuals within the meaning of” Title II). Thus, a nondisabled person—who is
textually foreclosed from personally experiencing a form of discrimination that
violates Title II’s nondiscrimination provision—would seem equally foreclosed from
pursuing Title II’s “remedies, procedures, and rights.” 45 42 U.S.C. § 12133.
Notwithstanding, a number of circuits have interpreted Title II to permit at
least some organizations (or their operators) that experience discrimination by public
entities due to their association with “qualifying individual[s] with a disability” to
seek redress under Title II. See Innovative Health Sys., Inc. v. City of White Plains,
117 F.3d 37, 47 (2d. Cir. 1997) (concluding that a drug- and alcohol-rehabilitation
treatment center has standing to sue under Title II), recognized as superseded on
other grounds, Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001);
Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 405-07 (3rd Cir.
2005) (same for the operator of a methadone clinic); A Helping Hand, 515 F.3d at 363
(same for the operator of a methadone clinic); see also MX Grp., Inc. v. City of
Covington, 293 F.3d 326, 335 (6th Cir. 2002) (adopting the relevant reasoning in
Background principles of Article III standing inform the Court’s understanding of
the constitutional scope of Title II’s enforcement provision. One component of
constitutional standing is the “concrete injury requirement,” which mandates that
the injury sued upon be both “concrete and particularized.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560, 578 (1992). “[T]he party seeking review [must] be himself
among th[ose] injured” by a public entity’s conduct. Id. at 563 (quoting Sierra Club
v. Morton, 405 U.S. 727, 735 (1972)) (internal quotation marks omitted). Thus, the
person “alleging discrimination” must have experienced discrimination. 42 U.S.C. §
Innovative Health as “persuasive” in the context of an entity seeking to open a
methadone clinic). In reaching this conclusion, these courts—like plaintiffs 46—hone
in on the phrase “any person alleging discrimination on the basis of disability,” with
a particular emphasis on “any person.” 42 U.S.C. § 12133; see also 1 U.S.C. § 1 (“In
determining the meaning of any Act of Congress, unless the context indicates
otherwise . . . the words ‘person’ and ‘whoever’ include corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as well as
individuals . . . .”).
“Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’” United States v. Gonzales, 520 U.S. 1, 5 (1997)
(quoting Webster’s Third New International Dictionary 97 (1976)). Notwithstanding
a word’s isolated meaning, however, one does not interpret a text with any degree of
accuracy by limiting the interpretive enterprise to myopic examination of each of the
text’s individual constituent words. See Roberts v. Sea-Land Serv., Inc., 566 U.S. 93,
101 (2012) (“Statutory language . . . cannot be construed in a vacuum.” (internal
quotation marks omitted)). Instead, one must heed the particular combination of
words selected by the author, whether an individual or group of individuals. In short,
context matters. See Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147
(2007) (observing that “broad language is not limitless” and that “a liberal
construction nonetheless can find limits in a text’s language, context, history, and
purposes”); Food & Drug Admin. V. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000) (“It is a fundamental canon of statutory construction that the words
See R. Doc. No. 78, at 6-7.
of a statute must be read in their context and with a view to their place in the overall
statutory scheme.” (internal quotation marks omitted)).
With two eyes on context, the breadth of “any” as used in Title II seems as clear
as crystal: “any” is explicitly limited to “person[s] alleging discrimination on the basis
of disability in violation of” Title II’s nondiscrimination provision.” 42 U.S.C. § 12133
(emphasis added); cf. Gonzales, 520 U.S. at 5 (interpreting 18 U.S.C. § 924(c)(1), and
distinguishing between a phrase that explicitly limits the breadth of the word “any”
and a phrase that does not). Thus, the plain language of Title II seems to reserve the
keys to the remedial kingdom for plaintiffs alleging both 1) “discrimination on the
basis of disability” and 2) “discrimination . . . in violation of” Title II’s
nondiscrimination provision.” 42 U.S.C. § 12133. While the former requirement is
broad enough to encompass associational discrimination—which is based on
disability—the latter requirement is not.
Looking beyond the four corners of Title II’s text, some circuits have also
considered Title II’s legislative history as relevant to interpreting the statute’s scope.
See, e.g., Innovative Health, 117 F.3d at 47; A Helping Hand, 515 F.3d at 364. This
nontextual evidence suggests that at least some of the legislators involved in drafting
Title II intended that Title II cover all forms of discrimination prohibited under Titles
I and III of the ADA. See, e.g., H.R. Rep. 101-485(II), at 84 (May 15, 1990). Titles I
and III’s nondiscrimination provision—both of which prohibit discrimination against
individuals “on the basis of disability,” as opposed to individuals “with a disability”—
each explicitly prohibit discrimination by association. 47 See 42 U.S.C. § 12111(a),
(b)(4) (Title I); id. § 12182(a), (b)(1)(E) (Title III); cf. id. §12132 (Title II).
Yet despite what may be gleamed from congressional records that were not
subjected to the rigors of bicameralism and presentment, see U.S. Const. art. I, § 7 cl.
1-2, “[w]here the statute is so lucid, we need not look to the legislative history for
further guidance.” Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033, 1035
(5th Cir. 1990).
Such appears to be the case with Title II, which provides a
“straightforward statutory command” that the Court need only follow. Gonzales, 520
U.S. at 6.
Further, even accepting as sound the conclusion that at least some
organizations may sue under Title II, the organizations involved as plaintiffs in the
relevant cases provided treatment services to individual persons suffering from
alcoholism and drug addiction. See Innovative Health, 117 F.3d at 37; Addiction
Specialists, 411 F.3d at 399; A Helping Hand, 515 F.3d at 356; MX Grp., 293 F.3d at
Such individuals may—indeed, some unquestionably do—fall within the
Louisiana makes much of the fact that Titles I and III explicitly prohibit
associational discrimination, while Title II does not, reasoning that the Court should
treat Congress’s exclusion of an explicit prohibition on associational discrimination
in Title II as an intentional choice. See R. Doc. No. 76-1, at 4-5. The primary case on
which Louisiana relies, Todd v. Carstarphen, 236 F. Supp. 3d 1311 (N.D. Ga. 2017),
makes the same point. See 236 F. Supp. 3d at 1339-40.
However, Title II does not mirror the structures of Titles I and III. Whereas
Titles I and III include extensive rules of construction to explain the scopes of their
general nondiscrimination prohibitions, Title II simply includes a general
nondiscrimination prohibition. This structural distinction between Titles I and II on
the one hand, and Title II on the other, is significant and ultimately precludes the
inference suggested by Louisiana. Cf. Innovative Health, 117 F.3d at 47 (“Congress
surely did not intend to excuse similar discriminatory conduct by a public entity
simply because such conduct is not spelled out in Title II.”).
protective auspices of the ADA.
See 42 U.S.C. § 12102(1) (defining the term
“disability” in the ADA); Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown,
294 F.3d 35, 46 (2d Cir. 2002) (observing that alcoholism and drug addiction
constitute “impairment[s]” under the ADA’s definition of “disability”), superseded by
statute on other grounds, ADA Amendments of 2008, Pub. L. No. 110–325, 122 Stat.
3553; MX Grp., 293 F.3d at 336 (same); see also Title II Technical Assistance Manual,
The American with Disabilities Act, https://www.ada.gov/taman2.html.
In this case, however, a nondisabled individual—Lazaro—is asserting a claim
of associational discrimination under Title II.
This breed of associational
discrimination claim seems materially distinct from such claims asserted by the
After all, the discrimination that these organizations allegedly
experienced at the hands of public entities—such as the use of local zoning laws to
prevent a methadone clinic from operating within city limits, MX Grp., 293 F.3d at
328—likewise discriminated against a class of Title II-protected disabled individuals
by erecting barriers to access to treatment facilities for such individuals “by reason
of [their] disability,” see 42 U.S.C. § 12132.
Thus, blessing these organizations’ associational discrimination claims under
Title II was a direct means to vindicate the rights of “individual[s] with a disability.”
Id. An individual associational discrimination claim may also vindicate disabled
individuals’ rights, but the vindication seems more attenuated. Individual claims
seem primarily designed to vindicate the interest of the individual asserting it—and
as a nondisabled individual, Lazaro’s interests seem beyond Title II’s concern.
At least one circuit seems to have endorsed the availability under Title II of
individual associational discrimination claims of the type brought by Lazaro. In
McCullum v. Orlando Regional Healthcare System, Inc., 768 F.3d 1135 (11th Cir.
2014), nondisabled individuals brought associational discrimination claims against
two hospitals under both Title II and Title III of the ADA. See 768 F.3d at 1140; see
also McCullum v. Orlando Reg’l Healthcare Sys., Inc., No. 11-1387, R. Doc. No. 1-2
(M.D. Fla. Aug. 18, 2011) (complaint). The district court dismissed the claims. See
McCullum, 768 F.3d at 1141; see also McCullum, No. 11-1387, R. Doc. No. 24 (M.D.
Fla. Nov. 8, 2011) (Presnell, J.) (order).
On appeal, the Eleventh Circuit first opined that “[i]t is widely accepted that
under both the [Rehabilitation Act of 1973] and the ADA, non-disabled individuals
have standing to bring claims when they are injured because of their association with
a disabled person.” McCullum, 768 F.3d at 1142. With respect to the ADA, the
Eleventh Circuit exclusively supported this proposition with citations to the same
Title II cases previously explored by the Court: cases involving organizations that
provide services to individuals protected by Title II. See id. at 1142 (citing Innovative
Health, 117 F.3d at 46-48; Addiction Specialists, 411 F.3d at 405-09; A Helping Hand,
515 F.3d at 362-64; MX Grp., 293 F.3d at 333-35).
The Eleventh Circuit then went on to identify Title III’s explicit prohibition on
associational discrimination as “[t]he section of the ADA conferring standing on a
When interpreting this provision of Title III as to
nondisabled individuals, however, the court again referenced cases in which other
circuits recognized organizational standing to sue under Title II. Id. (citing A Helping
Hand, 515 F.3d at 358-59, 363-64; MX Grp., 293 F.3d at 329-31, 333-35).
As far as its analysis of the ADA, then, the Eleventh Circuit in McCullum may
be off the mark in several respects. First, McCullum seems to conflate the ADA’s
various titles, and in the process does not consider potentially material linguistic and
structural differences among them. Likewise, McCullum’s use of case law bearing on
associational discrimination claims does not distinguish among the ADA’s titles, and
does not differentiate between organizations versus nondisabled individuals. Based
on these shortcomings, the Court declines to follow McCullum’s conclusions as to the
In the end, the text of Title II does not appear to make room for associational
discrimination claims. The regulation recognizing such claims, then, looks as if it
rests on a fragile foundation.
However, in law—as in life—looks can be deceiving.
While Louisiana’s argument about the plain meaning of Title II is “strong,”
what “may seem plain when viewed in isolation” can become “untenable in light of
[the statute] as a whole.” King v. Burwell, 135 S. Ct. 2480, 2495 (2015) (internal
quotation marks omitted) (alteration in original). Such is the case here.
That is because “Congress has instructed courts that ‘nothing in [the ADA]
shall be construed to apply a lesser standard than the standards applied under title
V [i.e., § 504] of the Rehabilitation Act . . . or the regulations issued by Federal
agencies pursuant to such title.’” Frame v. City of Arlington, 657 F.3d 215, 223-24
(5th Cir. 2011) (en banc) (quoting 42 U.S.C. § 12201(a)) (alterations in original). Thus,
“the ADA actually prohibits courts from construing Title II to apply a lesser standard
than” § 504 and regulations promulgated to implement it. Id. at 228 (emphasis
added). If § 504 permits individual associational discrimination claims, then Title II
must also permit such claims, the plain text of Title II notwithstanding. 48 Cf. id.
(“Because the Rehabilitation Act regulations require new and altered facilities,
including sidewalks, to be accessible in most circumstances, our construction of [Title
II] requires no less.”).
Currently, § 504’s regulations do not address the issue of discrimination by
association. 49 The Court will therefore focus only on the statutory text.
Section 504 provides, in relevant part: “No otherwise qualified individual with
a disability in the United States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance .
. . .” 29 U.S.C. § 794(a). As used here, the phrase “individual with a disability”
Todd v. Carstarphen, 236 F. Supp. 3d 1311 (N.D. Ga. 2017), on which Louisiana so
heavily relies, does not acknowledge—let alone discuss—Congress’s instruction visà-vis construction of the ADA. See 236 F. Supp. 3d at 1338-42.
49 On January 19, 2017, the Department of Justice proposed a regulation explicitly
recognizing the availability of associational discrimination claims under § 504. See
U.S. Dep’t of Justice, Notice of Proposed Rulemaking, Amendment of Regulations
Implementing Section 504 of the Rehabilitation Act of 1973—Nondiscrimination
Based on Disability in Federally Assisted Programs or Activities (Jan. 19, 2017),
regulation provides that “[a] recipient shall not exclude or otherwise deny aid,
benefits, or services of its program or activity to an individual because of that
individual’s relationship or association with an individual with a known disability.”
Id. The comment period ended March 20, 2017. Id.
encompasses “any individual who has a physical or mental impairment which for
such individual constitutes or results in a substantial impediment to employment,”
among other things.
Id. § 705(20)(A)(i).
As with Title II’s nondiscrimination
provision, then, § 504’s nondiscrimination provision only proscribes discrimination
against “individual[s] with a disability.” Id. § 794(a); cf. 42 U.S.C. § 12132.
Yet when it comes to its enforcement provision, § 504’s language appears
notably broader than Title II’s. Whereas Title II extends its “remedies, procedures,
and rights” to “any person alleging discrimination on the basis of disability in
violation of [Title II’s nondiscrimination provision],” 42 U.S.C. § 12133, § 504 makes
its “remedies, procedures, and rights . . . available to any person aggrieved by any act
or failure to act by any recipient of Federal assistance or Federal provider of such
assistance under [§ 504’s nondiscrimination provision],” 29 U.S.C. § 794a(a)(2)
(emphasis added). 50
Thus, § 504’s enforcement provision does not limit relief to “qualified
individual[s] with a disability”—persons whose treatment by § 504-covered programs
and activities can violate § 504’s nondiscrimination provision. Id. § 794(a). Instead,
the enforcement provision extends relief to “any person” who is “aggrieved” by such a
violation. Id. § 794a(a)(2). Even the narrowest constructions of this language to be
endorsed by courts leave non-disabled individuals with room to bring associational
discrimination claims in certain circumstances. See Loeffler v. Staten Island Univ.
“Courts have construed the phrase ‘any person aggrieved’ as an expression of
Congressional intent to accord standing to the fullest extent permitted by the case
and controversy provision of Article III.” Weber v. Cranston Sch. Comm., 212 F.3d
41, 48 (1st Cir. 2000.
Hosp., 582 F.3d 268, 283-88 (2d Cir. 2009) (Jacobs, C.J., dissenting in part)
(interpreting the term “aggrieved” as used in § 504’s enforcement provision as
coterminous with the types of conduct proscribed by § 504’s nondiscrimination
provision); McCullum, 768 F.3d at 1143-45 (same); Bernius v. Ochsner Med. Ctr. –
North Shore, L.L.C., No. 16-14730, R. Doc. No. 33, at 8-14 (E.D. La. Dec. 15, 2016)
(Barbier, J.) (same); cf. Weber v. Cranston Sch. Comm., 212 F.3d 41, 47-49 (1st Cir.
2000) (concluding that a parent has standing under § 504 to sue in her individual
capacity for retaliation that she experienced while assisting her disabled child
vindicate his rights under federal law).
As the Court previously discussed, § 504 sets a floor on the scope of protection
afforded by Title II. See Frame, 657 F.3d at 228 (explaining 42 U.S.C. § 12201(a)).
Given the fact that § 504 is sufficiently broad to permit at least some category of
individual associational discrimination claims, Title II must be read to permit the
same. As to the parameters of such Title II claims, however, the text of Title II is
Chevron instructs courts that “if the statute is silent or ambiguous with respect
to the specific issue, the question for the court is whether the agency’s answer is based
on a permissible construction of the statute.” 467 U.S. at 843; see also Frame, 657
F.3d at 224-25 (“When confronted with a statutory ambiguity, [courts] refer to the
responsible agency’s reasonable interpretation of that statute.”). In this case, the
Attorney General promulgated a regulation providing that “[a] public entity shall not
exclude or otherwise deny equal services, programs, or activities to an individual or
entity because of the known disability of an individual with whom the individual or
entity is known to have a relationship or association.” 28 C.F.R. § 35:130(g).
The Court concludes that the Attorney General’s interpretation of Title II, as
embodied in the relevant regulation, is reasonable. See Frame, 657 F.3d at 224-25.
The conduct proscribed by the regulation hews to the conduct proscribed by Title II’s
nondiscrimination provision itself. Compare 42 U.S.C. § 12132, with 28 C.F.R. §
35:130(g). This approach simply adapts the structure of Title I and III’s associational
discrimination claims to the Title II context. Compare 42 U.S.C. § 12112(b)(4) (Title
I), and id. § 12182(b)(1)(E) (Title III), with 28 C.F.R. § 35:130(g) (Title II).
Such an approach is perfectly sensible.
Indeed, if the Attorney General
considered nontextual evidence when developing the regulation, such as Title II’s
legislative history—evidence that executive agencies may have greater flexibility to
access and evaluate than the federal courts—then the choice to craft a Title II
associational discrimination regulation that is consistent with Titles I and III’s
analogous proscriptions becomes more sensible still. 51 The Court concludes that the
regulation challenged by Louisiana is lawful and represents an authoritative
construction of Title II.
One final note: “[a] Congress that intends the statute to be enforced through a
private cause of action intends the authoritative interpretation of the statute to be so
See Nondiscrimination on the Basis of Disability in State and Local Government
Services, 56 Fed. Reg. at 35706 (explaining the scope of 28 C.F.R. § 35:130(g) in part
by reference to the legislative process leading up to Title II’s enactment).
enforced as well.” Alexander v. Sandoval, 532 U.S. 275, 284 (2001). A regulation, “if
valid and reasonable, authoritatively construe[s] the statute itself.” Id.
“[T]here is no question” that Title II, like § 504, is enforceable via an implied
private right of action. Frame, 657 F.3d at 224. There is also no question, then, that
nondisabled individuals like Lazaro have a private right to enforce the valid and
reasonable—and thus authoritative—Title II regulation proscribing associational
discrimination by public entities.
However, Lazaro must not merely show that associational discrimination
claims are available under Title II. He must in fact state such a claim. The same
goes for analogous claims under § 504.
The relevant Title II regulation provides that “[a] public entity shall not
exclude or otherwise deny equal services, programs, or activities to an individual or
entity because of the known disability of an individual with whom the individual or
entity is known to have a relationship or association.” 28 C.F.R. § 35:130(g). Thus,
in order to state a Title II associational discrimination claim, a plaintiff must allege,
in part, that he in fact suffered discrimination as defined in the regulation: either
exclusion from or denial of equal services, programs, or activities by a public entity.
Lazaro alleges that he was “‘subjected to discrimination’ by [Louisiana] when
[Louisiana’s agents] forced him into the untenable role of attempting to interpret for
his son information which if misunderstood could (and did) result in his son’s loss of
liberty.” 52 However, this allegation involves Nelson’s potential exclusion from or
denial of equal services, programs, or activities by Louisiana—not Lazaro’s.
This is not a case, for example, in which a public entity “refuse[s] to allow a
theater company to use a school auditorium on the grounds that the company had
recently performed for an audience of individuals with HIV disease” or “refuses
admission to a person with cerebral palsy and his or her companions.”
Nondiscrimination on the Basis of Disability in State and Local Government Services,
56 Fed. Reg. 35694, 35706 (July 26, 1991) (explaining the type of conduct proscribed
by 28 C.F.R. § 35:130(g)). Instead, this is a case in which a public entity did not
provide an ASL interpreter to a deaf individual, and a non-deaf individual may have
suffered a derivative harm as a result. Such a harm, however, is not enough. Cf.
United States v. Nobel Learning Communities, Inc., No. 09-1818, 2010 WL 1047730,
at *4 (E.D. Pa. Mar. 24, 2010) (McLaughlin, J.) (concluding that Title III associational
discrimination claims require allegations that a plaintiff “experienced direct
discrimination because of his or her association with a disabled person” and that
allegations “premised on a derivative benefit or harm based on treatment towards a
disabled person” are insufficient). Louisiana’s use of Lazaro’s sign language skills to
communicate with Nelson simply did not exclude Lazaro from equal services,
programs, or activities, or deny him the same.
Lazaro has not alleged that Louisiana discriminated against him within the
meaning of the applicable Title II regulation. Consequently, Lazaro has failed to
state a Title II associational discrimination claim against Louisiana.
R. Doc. No. 78, at 10; see also R. Doc. No. 69, ¶¶ 63-65.
In addition to Title II, Lazaro also asserts an associational discrimination
claim under § 504. Two circuits have thus far considered what standard governs the
types of injuries required in order to state such a claim. They have reached different
The Second Circuit was the first circuit out of the gate. In Loeffler v. Staten
Island University Hospital, 582 F.3d 268 (2d Cir. 2009), two nondisabled plaintiffs
alleged that “they were compelled to provide sign language interpretation [to their
deaf father] for the [defendant] Hospital and were consequently taken out of school
and exposed to their father’s suffering.” 582 F.3d at 279-80 (Wesley, J., concurring
with Sand, J.).
Two judges on the three-judge Loeffler panel concluded that these allegations
discrimination claims [under § 504] need only prove an independent injury causally
related to the denial of federally required services to the disabled persons with whom
the non-disabled plaintiffs are associated.” Id. at 279. In reaching this result, the
panel concluded that § 504’s enforcement provision “is distinct from the [§ 504]
provision prohibiting discriminatory conduct on the part of the recipient of federal
assistance.” Id. at 280 (discussing the relationship between 29 U.S.C. §§ 794(a) and
794a(a)(2)). Thus, in the panel’s view, the types of injuries cognizable under § 504’s
enforcement provision need not be limited to exclusion from participation in, denial
of the benefits of, or subjection to discrimination under a covered program or
activity—the types of conduct prohibited under § 504’s nondiscrimination provision.
Id.; see also 29 U.S.C. § 794(a).
The third judge on the panel, then-Chief Judge Jacobs, dissented from this
portion of the panel opinion, contending that the panel’s holding was inconsistent
with both applicable precedent and statutory text, as well as principles of judicial
prudence. See id. at 283-88 (Jacobs, C.J., dissenting in part). In particular, Chief
Judge Jacobs took issue with the panel’s refusal to interpret § 504’s enforcement
provision in light of its nondiscrimination provision. See id. at 284-87. To Chief
Judge Jacobs, courts had generally recognized associational discrimination claims
under § 504 only where nondisabled plaintiffs “were aggrieved in the same manner
and for the same reasons as an ‘otherwise qualified individual with a disability’ under
[§ 504’s nondiscrimination provision]: they were ‘excluded from the participation in,
[ ] denied the benefits of, or [ ] subjected to discrimination under any program or
activity receiving Federal financial assistance.’” Id. at 285 (quoting 29 U.S.C. §
794(a)) (emphasis and alterations in original). He then looked to the ADA’s treatment
of associational discrimination claims, observing that “[w]hen Congress enacted the
ADA, it [ ] clarified the standing requirement that associated persons be themselves
actually excluded or denied, and thereby unambiguously limited the breadth of ‘any
person aggrieved.’” Id. at 286.
To Chief Judge Jacobs, the non-deaf plaintiffs in Loeffler “were never excluded
from participation, denied services, or subjected to discrimination.”
Id. at 285.
Rather, “[t]hey assisted their parents in coping with an alleged violation of [§ 504]
without themselves being denied services.” Id. While “[t]hey may well have been
injured, forced to interpret for their parents, and made to miss school (among other
injuries),” Chief Judge Jacobs concluded that § 504 “does not confer standing on
account of these types of injuries.” Id.
Chief Judge Jacobs also challenged the panel’s holding as nothing less than
illogical. In his view, the panel’s “wide interpretation of ‘any person aggrieved’ [in §
504’s enforcement provision] has no evident limiting principle, as can be illustrated
in the hospital context.” Id. at 287. He explained:
Relatives and friends of patients routinely provide additional or
complementary services to patients. Once a breach of duty is found
under [§ 504], everybody and his mother (literally) will be able to submit
a bill for services and injuries. A friend lifts a wheelchair up a few stairs
when there is no ramp, and is injured; a relative prepares a gluten-free
meal that a hospital lacks resources to provide, and thereby incurs
expense, or gets burned on the stove; a sister stays up all night to cheer
the patient and translate from Dutch as needed, and suffers the trauma
of a flatlining.
If [§ 504] supported all these claims flowing from an initial act of
discrimination, a hospital’s liability would never end. And the hospital
might have to pay twice or many times over for each service it failed to
afford. If this were the law, [§ 504] would in that respect grant more
extensive remedies to associated persons than to persons with
disabilities themselves: only the disabled would actually have to be
excluded, denied, or subjected to discrimination in order to recover
Id. at 287. Lastly, Chief Judge Jacobs expressed concern that the panel’s broad
administrative problems for judges and juries.” Id.
Although Chief Judge Jacobs’ view did not carry the day in Loeffler, it later
persuaded the Eleventh Circuit in McCullum. See 768 F.3d at 1143-45. As in
Loeffler, McCullum involved hospitals relying on non-deaf plaintiffs to help
communicate with a deaf family member. See id. at 1138. Tracking Chief Judge
Jacobs’ argument, the McCullum Court was of the opinion that § 504’s enforcement
provision should be interpreted in light of § 504’s nondiscrimination provision. Id. at
Section 504’s nondiscrimination provision only proscribes exclusion from
participation in, denial of the benefits of, or subjection to discrimination under a
covered program or activity. 29 U.S.C. § 794(a). Based on this enumeration, the
McCullum Court was convinced that a person is “aggrieved” under § 504’s
enforcement provision only where he experiences these types of conduct—nothing
more, nothing less. 768 F.3d at 1144. The McCullum Court then concluded that nondeaf individuals are not “denied benefits when a hospital relies on them to help
interpret for a deaf patient.” 53 Id.
Faced with this circuit split, another section of this Court sided with Chief
Judge Jacobs and the Eleventh Circuit. See Bernius v. Ochsner Med. Ctr. – North
Shore, L.L.C., No. 16-14730, R. Doc. No. 33, at 8-14 (E.D. La. Dec. 15, 2016) (Barbier,
J.). Notably, Judge Barbier pointed out that “[r]equiring personal exclusion, denial
of benefits, or personal decimation”—in other words, requiring the types of injuries
enumerated in § 504’s nondiscrimination provision—“is consistent with the ADA’s
instruction that ‘nothing in [the ADA] shall be construed to apply a lesser standard
than the standards applied under’ Section 504.” Id. at 13 (quoting 42 U.S.C. §
In reaching this conclusion with respect to § 504, the McCullum Court pointed to
Title II regulations that entitled disabled individuals “to appropriate benefits in the
form of accommodation,” but that “did not confer any corresponding benefit on nondisabled persons.” Id. (citing 28 C.F.R. § 35.160(b)(1)).
After considering the statutory text and relevant case law, the Court likewise
endorses Chief Judge Jacobs’s interpretation of § 504. To walk the path forged by the
Loeffler panel “would result in the application of different standards for the ADA and
[§ 504]. Id. at 13-14. Indeed, that path would seem to result in the application of
more restrictive associational discrimination standards under the ADA’s titles than
under § 504. Compare 42 U.S.C. § 12112(b)(4) (Title I), 28 C.F.R. § 35:130(g) (Title
II), 42 U.S.C. § 12182(b)(1)(E) (Title III), with Loeffler, 582 F.3d at 279-80 (§ 504).
This is precisely the outcome forbidden by Congress. See 42 U.S.C. § 12201(a).
As the Court previously indicated, Lazaro’s injury is that he was required to
interpret between his son and his son’s probation officer.
Such an injury is not
cognizable under § 504. 55 See McCullum, 768 F.3d at 1145; Bernius, R. Doc. No. 33,
See R. Doc. No. 78, at 10; see also R. Doc. No. 69, ¶¶ 63-65.
Lazaro argues that he qualifies as a “person aggrieved” under § 504’s enforcement
provision, because Louisiana allegedly violated two relevant regulations. See R. Doc.
No. 78, at 10. The first—28 C.F.R. § 35.160(c)(1)—provides that “[a] public entity
shall not require an individual with a disability to bring another individual to
interpret for him or her.” Relatedly, 28 C.F.R. § 35.160(c)(2) provides that “[a] public
entity shall not rely on an adult accompanying an individual with a disability to
interpret or facilitate communication except” in certain enumerated situations.
These regulations were promulgated by the Attorney General to implement
Title II. See 28 C.F.R. § 35.101(a) (stating that the purpose of Part 35 is to implement
Title II’s nondiscrimination and enforcement provisions). They do nothing to alter
the standard—articulated in another regulation—governing Title II associational
discrimination claims: “[a] public entity shall not exclude or otherwise deny equal
services, programs, or activities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known to have a
relationship or association.” Id. § 35:130(g). As the Court previously explained,
Lazaro does not meet this standard.
The Court also points out that the two regulations identified by Lazaro
ultimately aim to protect individuals with disabilities, not nondisabled individuals.
See id. §§35.160(c)(1)-(3). Such a focus makes sense: after all, the purposes of the
ADA are “to provide a clear and comprehensive national mandate for the elimination
of discrimination against individuals with disabilities”; “to provide clear, strong,
consistent, enforceable standards addressing discrimination against individuals with
at 14. Therefore, Lazaro has failed to state a § 504 associational discrimination claim
Having determined “which aspects of [Louisiana’s] alleged conduct violated
Title II” for purposes of the Georgia analysis—namely, the decision by Nelson’s
probation officer not to secure a qualified ASL interpreter to attend her meetings with
Nelson—the Court must next consider “to what extent such misconduct also violated
the Fourteenth Amendment.” Hale, 642 F.3d at 498 (quoting Georgia, 546 U.S. at
159) (internal quotation marks omitted). If this conduct violated both Title II and the
Fourteenth Amendment, then Congress’s abrogation of Louisiana’s sovereign
immunity is unambiguously valid in this case. Id. As the Court previously stated, if
Louisiana’s alleged conduct violated only Title II, then the question of the
abrogation’s validity becomes more complicated. See id.
Section 1 of the Fourteenth Amendment provides, in relevant part:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection
of the laws.
disabilities”; “to ensure that the Federal Government plays a central role in enforcing
the standards established in this chapter on behalf of individuals with disabilities”;
and “to invoke the sweep of congressional authority, including the power to enforce
the fourteenth amendment and to regulate commerce, in order to address the major
areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. §
12101(b)(1)-(4) (emphasis added).
As understood by the Supreme Court, this constitutional edict does not oblige states
“to make special accommodations for the disabled, so long as their actions toward
such individuals are rational.” Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S.
356, 367 (2001) (analyzing Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432
(1985)). However, if state action towards the disabled “impermissibly interferes with
the exercise of a fundamental right,” then the action must withstand strict scrutiny—
not merely rational basis review. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307,
312 (1976); see also A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 226 (5th Cir. 2009)
As a threshold matter, plaintiffs appear to argue Nelson’s probation officer
encroached on Nelson’s fundamental rights by not procuring a qualified interpreter
for her meetings with Nelson. According to plaintiffs, Louisiana’s conduct “greatly
impinged upon” Nelson’s “conditional liberty interest protected by the Constitution,”
because the lack of a qualified interpreter at Nelson’s meetings with his probation
officer “required [Nelson] to guess and hope that he [was] not violating a term of his
probation that he did not fully understand.” 56
The Court does not question that due process protections “extend[ ] to
probation revocation proceedings” and that “[f]air warning of conduct that may result
in revocation is an integral part of due process in such situations.” United States v.
Gallo, 20 F.3d 7, 11 (1st Cir. 1994) (citing Gagnon v. Scarpelli, 411 U.S. 778, 782
(1973); United States v. Simmons, 812 F.2d 561, 565 (9th Cir. 1987)). Thus, Louisiana
has a constitutional obligation to reasonably instruct its probationers as to the
R. Doc. No. 86, at 6.
conditions of their probation, and a failure to satisfy this obligation surely may
“impermissibly interfere[ ] with the exercise of a fundamental right.” Murgia, 427
U.S. at 312.
Accepting the factual allegations in the complaint as true and construing them
in the light most favorable to plaintiffs, Louisiana fulfilled its obligation to Nelson.
Plaintiffs allege that Lazaro—Nelson’s father and a non-deaf individual—attended
the meeting between Nelson and his probation officer in which the officer explained
the terms and conditions of Nelson’s probation. 57 Plaintiffs also allege that Lazaro
interpreted between Nelson and his probation officer at the meeting. 58
Although plaintiffs allege that Nelson and Lazaro both repeatedly requested
the presence of a qualified interpreter at this meeting, this allegation alone does not
demonstrate that the probation officer’s reliance on Lazaro’s interpretive services at
the meeting in any way amounted to impermissible interference with Nelson’s due
process right to fair warning of his probation conditions. 59 After all, no constitutional
rule bars a deaf individual’s relatives from providing interpretive services even in
criminal trials. See United States v. Ball, 988 F.2d 7 (5th Cir. 1993) (per curiam)
(noting that “[t]here is . . . no absolute bar against appointing a witness’ relative to
act as an interpreter [in a criminal proceeding] when circumstances warrant such an
If Nelson and Lazaro did not feel comfortable with Lazaro acting as an
interpreter, then Lazaro simply could have refused to so act, at which point Nelson’s
R. Doc. No. 69, ¶¶ 32-34.
Id. ¶ 34.
probation officer would have had to procure an alternative means to facilitate
effective communication between herself and Nelson 60 Indeed, at a later meeting
between Nelson and his probation officer, Lazaro allegedly did refuse to interpret.
Then, the probation officer indicated that she would in fact secure the presence of a
qualified interpreter at a rescheduled meeting. 61 Yet Lazaro then agreed to serve as
an interpreter. 62
Further, plaintiffs allege that Nelson’s probation was revoked in one instance.
According to plaintiffs, Nelson enrolled in an in-patient drug treatment program in
California. 63 Judge Mentz “found that Nelson had committed a technical violation of
the conditions of his probation by leaving the state of Louisiana and ordered Nelson
to serve 90 days in the JPCC.” 64
Plaintiffs allege that Nelson “was not aware that leaving [Louisiana] to attend
drug treatment as ordered by [Judge Mentz] was a violation of his probation,” because
Louisiana never provided a qualified interpreter “to explain the terms and conditions
of [p]robation to [Nelson] and [Lazaro] in American Sign Language.” 65 Yet in their
At one meeting attended only by Nelson and his probation officer, the probation
officer allegedly attempted to use written English to communicate with Nelson. Id.
¶ 52. When this method of communication proved unsuccessful, Nelson ended the
meeting. Id. Nelson’s probation officer then attempted to secure a qualified
interpreter for their next meeting. Id. ¶ 52. When she was unable to do so, she
proposed using the courtroom interpreter at Nelson’s next court appearance, which
involved an offense unrelated to his probation. Id. The Court sees no basis to
conclude that the probation officer’s use of a courtroom interpreter “impermissibly
interfere[d]” with any of Nelson’s fundamental rights. Murgia, 427 U.S. at 312.
61 R. Doc. No. 69, ¶ 57.
63 Id. ¶ 35.
64 Id. ¶ 39.
65 Id. ¶ 38.
briefing, plaintiffs go out of their way to explain that they “have never argued that
Nelson’s incarceration as a result of the technical violation [of his probation]”—
namely, leaving Louisiana—“was due to a denial of due process.” 66 Plaintiffs also
concede that “Nelson knowingly and voluntarily pleaded guilty to the technical
violation of probation with adequate assistance of counsel and an interpreter in the
courtroom.” 67 If plaintiffs concede that “Nelson’s incarceration . . . was not due to a
denial of due process” and that he pleaded guilty “knowingly and voluntarily,” then
despite the allegations in the complaint, plaintiffs appear to concede that Nelson
received “[f]air warning of conduct that may result in revocation” in satisfaction of
due process. Gallo, 20 F.3d at 11.
Moreover, plaintiffs’ allegations suggest that Nelson did not seek guidance
from his probation officer or any other Louisiana officer prior to leaving Louisiana to
enroll in a California-based in-patient drug treatment program. 68 Such an oversight
on Nelson’s part may preclude plaintiffs from arguing now that Nelson did not receive
fair warning that leaving Louisiana to receive drug treatment would violate his
probation conditions. Cf. United States v. Detraz, No. 99-30722, 2000 WL 959576, at
*1 (5th Cir. 2000) (per curiam) (“The Detrazes’ failure to seek court or probation office
guidance as to the permissibility of the hunting bars their claim to fair notice. No
one misled the Detrazes into going hunting; they simply decided to take their chances.
The clear terms of the conditions of probation barred any hunting.”).
R. Doc. No. 86, at 13.
68 R. Doc. No. 69, ¶¶ 36-37.
Lastly, Lazaro—Nelson’s father and a non-deaf individual—assisted Nelson in
securing enrollment in the in-patient drug treatment program in California. 69 Lazaro
participated in the meetings between Nelson and Nelson’s probation officer. 70
Indeed, he interpreted for Nelson and the probation officer. 71 Thus, Lazaro was privy
to the terms and conditions of Nelson’s probation, and the lack of a qualified
interpreter was not a barrier to his understanding of those terms and conditions. Any
misunderstanding about those terms and conditions, then—at least as far as they
concerned restrictions on leaving Louisiana—seem unrelated to the absence of a
qualified interpreter at Nelson’s meetings with his probation officer.
In short, the Court sees no basis to conclude that Louisiana’s alleged conduct
“impermissibly interfere[d] with the exercise of a fundamental right” by Nelson.
Murgia, 427 U.S. at 312. The Court will therefore apply rational basis review to its
examination of Louisiana’s relevant conduct in this case.
Under rational basis review, a state’s conduct does not violate the Fourteenth
Amendment if it is “rationally related to a legitimate state interest.” Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 83 (2000). Further, when challenging state action that
is subject only to rational basis review, “the burden is upon the challenging party to
negative any reasonably conceivable state of facts that could provide a rational basis
for the classification.” Garrett, 531 U.S. at 367 (quoting Heller v. Doe, 509 U.S. 312,
Id. ¶ 35.
See id. ¶¶ 33-34.
71 Id. ¶ 34.
320 (1993)) (internal quotation marks omitted). Plaintiffs have not satisfied that
For example, Louisiana has a legitimate governmental interest in conserving
its financial resources. Cf. Garrett, 531 U.S. at 372 (observing that “it would be
entirely rational (and therefore constitutional) for a state employer to conserve scarce
financial resources by hiring employees who are able to use existing facilities”).
Moreover, Nelson’s probation officer’s refusal to provide a qualified interpreter to
attend her meetings with Nelson, where an alternative means to facilitate effective
communication between herself and Nelson was readily available—namely, Lazaro’s
interpretive services—is rationally related to promoting that interest.
If the probation officer’s alleged conduct “impermissibly interfere[d] with the
exercise of [Nelson’s] fundamental right[s],” Murgia, 427 U.S. at 312, then “ordinary
considerations of cost and convenience alone” could not justify such conduct, Lane,
541 U.S. at 533-34. However, as the Court previously explained, the conduct at issue
in this case does not cross the threshold into impermissible interference.
Louisiana’s approach to Nelson’s needs may seem “hardheaded[ ]” or even
“hardhearted[ ].” Garrett, 531 U.S. at 367-68. Nevertheless, it does not amount to a
violation of the Fourteenth Amendment.
The probation officer’s alleged conduct toward Nelson therefore violated Title
II for purposes of the Georgia analysis, but did not violate the Fourteenth
In fact, plaintiffs appear to mistakenly assume that Louisiana bears the burden of
articulating a rational basis for its conduct. See R. Doc. No. 86, at 7 (“The State has
not even offered a rational basis for the unequal treatment of deaf probationers.”).
Amendment. Hale, 642 F.3d at 498 (quoting Georgia, 546 U.S. at 159). As such, the
Court must consider one final question: “whether Congress’s purported abrogation of
sovereign immunity as to [this] class of conduct is nevertheless valid.” Id. (quoting
Georgia, 546 U.S. at 159) (internal quotation marks omitted).
Section 5 of the Fourteenth Amendment grants Congress the power “to enforce,
by appropriate legislation, the provisions of” the amendment. In Katzenbach v.
Morgan, 384 U.S. 641 (1966), the Supreme Court linked the scope of this
constitutional language to Chief Justice Marshall’s classic formulation of the scope of
Congress’s Necessary and Proper Power in McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316 (1819): “Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted to that
end, which are not prohibited, but consist with the letter and spirit of the constitution,
are constitutional.” 384 U.S. at 650-51 (quoting McCulloch, 17 U.S. (4 Wheat.) at 421
(interpreting U.S. Const. art. I, § 8, cl. 18) and applying it to § 5) (internal quotation
marks omitted). Through the lens of McCulloch, the Morgan Court viewed § 5 as “a
positive grant of legislative power authorizing Congress to exercise its discretion in
determining whether and what legislation is needed to secure the guarantees of the
Fourteenth Amendment.” Id. at 651.
Three decades later, however, the Supreme Court revised the metes and
bounds of congressional authority under § 5 in City of Boerne v. Flores, 521 U.S. 507
The design of the Amendment and the text of § 5 are inconsistent with
the suggestion that Congress has the power to decree the substance of
the Fourteenth Amendment’s restrictions on the States. . . . Congress
does not enforce a constitutional right by changing what the right is. It
has been given the power “to enforce,” not the power to determine what
constitutes a constitutional violation. Were it not so, what Congress
would be enforcing would no longer be, in any meaningful sense, the
“provisions of [the Fourteenth Amendment].”
While the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive change
in the governing law is not easy to discern, and Congress must have wide
latitude in determining where it lies, the distinction exists and must be
observed. There must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.
521 U.S. at 519-20 (emphasis added) (internal citation omitted) (alterations in
Worded differently, Boerne directs that “[t]he appropriateness of remedial
measures must be considered in light of the evil presented.” Id. at 530. What may
be appropriate prophylactic legislation under § 5 with respect to one class of state
conduct may be wholly unwarranted with respect to another. Id.
Thus, Boerne’s “congruence and proportionality” test—as applied to Title I of
the ADA in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356
(2001)—consists of three prongs. The first prong directs a court to “identify with some
precision the scope of the constitutional right at issue” in a given case, as defined by
relevant case law. Garrett, 531 U.S. at 365. Then, “hav[ing] determined the metes
and bounds of the constitutional right in question,” the second prong involves
unconstitutional action impinging on that right. Id. at 368. For the third prong, the
court must determine whether Congress’s means to prevent or remedy state
incursions on the right is appropriate—i.e., congruent and proportional—based on
Congress’s documentation. See id. at 372-74.
Less than a decade after introducing Boerne’s “congruence and proportionality”
test into its Fourteenth Amendment jurisprudence, the Supreme Court applied the
test to Title II in Tennessee v. Lane, 541 U.S. 509 (2004). In Lane, two “paraplegics
who use wheelchairs for mobility” brought Title II claims against Tennessee, alleging
that it “denied [them] access to, and the services of, the state court system by reason
of their disabilities.” 541 U.S. at 513. Tennessee argued that Congress had not
validly abrogated state sovereign immunity under Title II. Id. at 514. The Lane
Court disagreed, concluding that “Title II, as it applies to the class of cases
implicating the fundamental right of access to the courts, constitutes a valid exercise
of Congress’ § 5 authority to enforce the guarantees of the Fourteenth Amendment.”
Id. at 533-34.
According to Lane, “[t]he first step of the Boerne inquiry [is to] identify the
constitutional right or rights that Congress sought to enforce when it enacted Title
II.” Id. at 522. The Lane Court concluded that Congress enacted Title II to enforce
the constitutional prohibition on irrational disability discrimination, as well as “to
enforce a variety of other basic constitutional guarantees, infringements of which are
subject to more searching judicial review.” Id. “These rights include some, like the
right of access to the courts at issue in [Lane], that are protected by the Due Process
Clause of the Fourteenth Amendment.”
Second, Lane considered the “historical experience” reflected by Title II. Id. at
523. The Lane Court determined that “Congress enacted Title II against a backdrop
of pervasive unequal treatment in the administration of state services and programs,
including systematic deprivations of fundamental rights.” Id. at 524. This backdrop
was illustrated in part by federal and state case law, which “demonstrate[d] a pattern
of unconstitutional treatment in the administration of justice.” Id. at 525. Further,
“[t]his pattern of disability discrimination persisted despite several federal and state
legislative efforts to address it.” Id. at 526.
The Lane Court went on to observe that, “[w]ith respect to the particular
services at issue in [Lane], Congress learned that many individuals, in many States
across the country, were being excluded from courthouses and court proceedings by
reason of their disabilities.” Id. at 527. Important for present purposes, the Lane
Court accepted as relevant the “numerous examples” of such exclusion documented
by Congress’s Task Force on the Rights and Empowerment of Americans with
Disabilities, including examples showing a “failure of state and local governments to
provide interpretive services for the hearing impaired.” Id. (citing Task Force on the
Rights and Empowerment of Americans with Disabilities, From ADA to
Empowerment (Oct. 12, 1990)).
Ultimately, Lane accepted Congress’s finding, “set forth in the text of the ADA
itself,” that “discrimination against individuals with disabilities persists in such
critical areas as employment, housing, public accommodations, education,
transportation, communication, recreation, institutionalization, health services,
voting, and access to public services.” Id. at 529 (quoting 42 U.S.C. 12101(a)(3))
(internal quotation marks omitted) (emphasis in original) (alteration removed). “This
finding, together with the extensive record of disability discrimination that underlies
it, makes clear beyond peradventure that inadequate provision of public services and
access to public facilities was an appropriate subject for prophylactic legislation.” Id.
Third and finally, Lane asked “whether Title II is an appropriate response to
this history and pattern of unequal treatment . . . as it applies to the class of cases
implicating the accessibility of judicial services.” Id. at 530-31. The Lane Court
answered this query in the affirmative:
Congress’ chosen remedy for the pattern of exclusion and discrimination
described above, Title II’s requirement of program accessibility, is
congruent and proportional to its object of enforcing the right of access
to the courts. The unequal treatment of disabled persons in the
administration of judicial services has a long history, and has persisted
despite several legislative efforts to remedy the problem of disability
discrimination. Faced with considerable evidence of the shortcomings
of previous legislative responses, Congress was justified in concluding
that this “difficult and intractable proble[m]’ warranted ‘added
prophylactic measures in response.”
Id. at 531 (quoting Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 737
(2003)) (alteration in original).
Post-Lane, circuits have split as to how Lane impacts the case-by-case
application of the Boerne test in the Title II context. Some circuits have read Lane to
streamline the relevant analysis under Boerne’s first two prongs, leaving only the
question whether Title II exhibits congruence and proportionality as it applies to the
class of cases implicating the particular right at issue in a given case. See Constantine
v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 486-90 (4th Cir. 2005)
(Shedd, J.); Klingler v. Director, Dep’t of Revenue, State of Missouri, 455 F.3d 888,
896-97 (8th Cir. 2006) (Arnold, J.); Ass’n for Disabled Americans, Inc. v. Fla. Int’l
Univ., 405 F.3d 954, 957-59 (11th Cir. 2005) (Kravitch, J.); see also McCarthy ex rel.
Travis v. Hawkins, 381 F.3d 407, 423-26 (5th Cir. 2004) (Garza, J., concurring in part
and dissenting in part). This interpretation of Lane still involves a determination as
to whether the right at issue was one that Congress sought to enforce when it enacted
Title II. See, e.g., Constantine, 411 F.3d at 486-87. What it does not involve, however,
is an extensive inquiry into Title II’s legislative record in every case involving the
validity of Title II’s abrogation. See, e.g., id. at 487.
Other circuits have read Lane more narrowly. These circuits have continued
to require courts to proceed through each step of the Boerne inquiry where Congress’s
purported abrogation of State sovereign immunity under Title II is at issue, including
a deep dive into Title II’s legislative record. See Toledo v. Sanchez, 454 F.3d 24, 3435 (1st Cir. 2006) (observing that “[s]ome appellate courts have chosen to interpret .
. . Lane as conclusively establishing that Title II survives the first two steps of the
City of Boerne inquiry,” but determining that “the sounder approach is to focus the
entire City of Boerne test on the particular category of state conduct at issue.”);
Guttman v. Khalsa, 669 F.3d 1101, 1117-18 (10th Cir. 2012) (Tymkovich, J.) (same).
Both of these views find support in Lane’s language. See Lane, 541 U.S. at
522-34. For its part, however, the Court concludes that the former view—which most
circuits to have considered the issue have adopted—offers the more sound reading of
Lane. This reading appears to best respect Lane’s comprehensive analysis of Title
II’s constitutional concerns and supporting history. Moreover, it appears to best
reconcile that analysis with its instruction to conduct a case-by-case inquiry into Title
II’s validity as § 5 legislation.
Thus, a court tasked with determining whether Title II validly abrogates state
sovereign immunity in a given case must first ask whether the state’s action in the
case implicates a constitutional right within the universe of rights identified by the
Lane Court—namely, rights grounded in the Fourteenth Amendment’s Equal
Protection and Due Process Clauses. See id. at 522-23 (determining that Title II
“seeks to enforce th[e] prohibition on irrational disability discrimination” and “other
basic constitutional guarantees, infringements of which are subject to more searching
If no, then Title II does not validly abrogate state sovereign
immunity. If yes, then “the sheer volume of evidence demonstrating the nature and
extent of unconstitutional discrimination against persons with disabilities in the
provision of public services” supports Congress’s enactment of Title II as prophylactic
legislation to enforce that right. Id. at 528-29. A court then need only ask whether
Title II is congruent and proportional as to the class of cases implicating the right.
First, like the constitutional right implicated in Lane, the constitutional right
implicated by Nelson’s probation officer’s conduct in this case is grounded in due
process: the right to “[f]air warning of conduct that may result in revocation” of
probation, which “is an integral part of due process in such situations.” Gallo, 20
F.3d at 11. This due process right is within the universe of rights identified by the
Lane Court. 73 See Lane, 541 U.S. at 522-23.
The Court must now consider whether Title II is congruent and proportional
as it applies to the class of cases implicating the due process right to fair notice of
probation conditions. Lane held that “Title II unquestionably is valid § 5 legislation
as it applies to the class of cases implicating the accessibility of judicial services.” Id.
at 531. While Lane itself concerned physical access to the courts, the Court sees no
reason why that holding is not equally applicable in this case. A state has a due
process obligation to provide a probationer with fair warning of probation conditions,
and a state’s failure to provide adequate interpretive services to deaf probationers
runs a real danger of breaching that obligation. 74
As the Lane Court opined, “[t]he unequal treatment of disabled persons in the
administration of judicial services has a long history, and has persisted despite
several legislative efforts to remedy the problem of disability discrimination.” Id. at
Congress was thus justified in prescribing a strong medicine to treat the
Thus, the Court need not dive into the history of discrimination undergirding Title
II. The Lane Court already concluded that “inadequate provision of public services
[to] and access to public facilities [by individuals with disabilities] was an appropriate
subject for prophylactic legislation.” Lane, 541 U.S. at 529.
That being said, the Court points out Lane’s observation that Congress’s
appointed task force to research disability discrimination across America documented
a “failure of state and local governments to provide interpretive services for the
hearing impaired.” Id. at 527. Such a failure undoubtedly has significant
implications for deaf probationers’ due process rights, including the right to
reasonable notice of probation conditions.
74 Louisiana wholly overlooks the applicability of Lane’s holding to this case. See R.
Doc. No. 85, at 5-8.
While strong, however, this medicine does not mandate that a state provide
deaf individuals with any particular interpretive service in a given instance. “Title
II does not require States to employ any and all means to make judicial services
accessible to persons with disabilities.” Id. at 531-32. Rather, Title II requires
“reasonable modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids and
services.” 42 U.S.C. §12131(2).
With respect to auxiliary aids and services, Title II’s implementing regulations
require public entities to “give primary consideration to the requests of individuals
with disabilities.” 28 C.F.R. § 35.160(b)(2). However, public entities need not honor
those requests in all instances. Rather, the regulations recognize that “[t]he type of
auxiliary aid or service necessary to ensure effective communication will vary in
accordance with the method of communication used by the individual; the nature,
length, and complexity of the communication involved; and the context in which the
communication is taking place.” Id. Public entities have flexibility in how they fulfill
their Title II obligations. 75
As far as this case is concerned, then, Title II is “a reasonable prophylactic
measure, reasonably targeted to a legitimate end.”
Id. at 533.
It exhibits the
requisite congruence and proportionality in the class of cases implicating the right to
Louisiana complains that “plaintiffs’ claims [ ] fail because there is a lack of
proportionality and congruence between the alleged wrong and the proposed remedy.”
Id. at 6. The problem with Louisiana’s argument is that it focuses on plaintiffs’
proposed remedy, not Congress’s. See id. at 6-8. In other words, what plaintiffs
believe should have been done, and what Title II requires to be done, are not
necessarily identical. The Court’s inquiry into the validity of Title II’s application
against a state in a given case focuses on the latter, not the former.
fair warning of probation conditions. Louisiana’s alleged failure to live up to Title II
will not shield it from plaintiffs’ Title II claim on behalf of Nelson.
Surfacing at long last from the jurisprudential deep, the contours of this case
become clear. For the foregoing reasons,
IT IS ORDERED that Louisiana’s motion for judgment on the pleadings is
GRANTED, and all of Lazaro’s claims against Louisiana are DISMISSED WITH
IT IS FURTHER ORDERED that Louisiana’s motion to dismiss plaintiffs’
Title II claims for lack of subject matter jurisdiction is DENIED.
New Orleans, Louisiana, November 16, 2017.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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