Accidentally on Purpose: Intent in Disability Discrimination Law

INTRODUCTIONAmerican disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent before they will remedy disability discrimination. These intent requirements have come into the law almost by accident: through a statutory analogy that appears apt but is in fact false; by continued repetition of language pulled from an obsolete judicial opinion; and by doctrine developed to avoid a conflict with another law when the conflict does not actually exist. This Article submits that many courts in disability discrimination cases involving education and other governmental services have made these interpretive errors, wrongly requiring plaintiffs to prove intent, particularly when the cases request monetary relief.The inapt statutory analogy is the borrowing of restrictive caselaw from Title VI of the Civil Rights Act,1 which forbids race discrimination by federal grantees, and Title IX of the Education Amendments,2 which forbids sex discrimination by federal educational grantees, to interpret section 504 of the Rehabilitation Act, which bans disability discrimination by federal grantees,3 and Title II of the Americans with Disabilities Act ("ADA"), which bans disability discrimination by state and local government.4 The misguided repetition of judicial language is the reliance on an assertion by one appellate court more than thirty years ago that in disability discrimination suits concerning education, plaintiffs must prove "bad faith or gross misjudgment."5 The unnecessary restriction on the reach of the disability discrimination laws to avoid contradicting another law arises from a supposed conflict between section 504 and the Individuals with Disabilities Education Act6 ("IDEA") that Congress resolved in 1986.7Demanding that disability discrimination claimants prove intent imposes a burden found nowhere on the face of section 504 or Title II of the ADA. It is true that in Alexander v. Choate, the Supreme Court required a showing of intentional discrimination to establish a violation of section 504 when plaintiffs mounted an attack on an across-the-board state government resource allocation decision concerning a public welfare program.8 But the same opinion stated that in other kinds of cases, disparate impact-the far extreme from intent- will suffice to establish a claim,9 and it denied the applicability of Title VI's requirement of intent for damages remedies.10 Analogous cases interpreting the employment provisions of the ADA and Supreme Court cases interpreting other ADA provisions do not insist on proof of intentional discrimination. 11 The text and legislative history of the ADA also show that intent is not required for reasonable accommodation cases.12This Article spells out the reasons not to impose any intent requirement either for liability or for monetary relief in section 504 and ADA cases concerning reasonable accommodations. It makes the uncontroversial point that no intent requirement applies to ADA employment cases, then explains that the same conclusion ought to apply to cases under the ADA's state and local government services provisions and section 504. It debunks the analogy to caselaw under Title VI and Title IX of the Civil Rights Act that a number of courts use to support an intent requirement in monetary relief cases. It then identifies and corrects the reasoning of the cases relying on the inappropriate analogy, those that rest on an obsolete precedent, and those that refuse to apply a full range of remedies for fear of conflict with the federal special education law.Much of the scholarship on issues of intent in discrimination law has tracked judicial developments. Thus noteworthy articles commented on the first Supreme Court decisions expounding Title VII13 disparate impact and disparate treatment theories.14 Significant commentary followed the Court's decision in Washington v. Davis,15 which held that plaintiffs had to prove intent to establish a violation of equal protection. …