No. 94-3344 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT LEWIS "TOBY" TYLER, Plaintiff-Appellant v. CITY OF MANHATTAN, KANSAS, Defendant-Appellee APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE JESSICA DUNSAY SILVER GREGORY B. FRIEL Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3876 01-05188 TABLE OF CONTENTS PAGE STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED AND STANDARD OF REVIEW . . . . . . . . . . 1 INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 2 A. Procedural History . . . . . . . . . . . . . . . 2 B. Facts . . . . . . . . . . . . . . . . . . . . . . 3 C. District Court's Opinion On Damages And Jury Trial . . . . . . . . . . . . . . . . . 5 INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . 6 ARGUMENT: I. PLAINTIFFS MAY SEEK COMPENSATORY DAMAGES FOR VIOLATIONS OF TITLE II'S "REASONABLE MODIFICATIONS" REQUIREMENT WITHOUT ALLEGING INTENTIONAL DISCRIMINATION . . . . . . . 8 A. Congress Did Not Rebut The Presumption In Favor Of Compensatory Damages . . . . . . 9 1. Statutory Language . . . . . . . . . . . 9 2. Legislative History . . . . . . . . . . 12 B. The Franklin Presumption Applies Under Title II Regardless of Whether The Plaintiff Alleges Intentional Discrimination . . . . . . . . . . . . . . 14 C. The District Court Overlooked Caselaw Authorizing Compensatory Damage Awards Under Section 504 In The Absence Of Intentional Discrimination . . . . . . . . 19 D. Compensatory Damages Are An "Appropriate Remedy" . . . . . . . . . . . . . . . . . 22 II. PRIVATE PLAINTIFFS WHO SEEK COMPENSATORY DAMAGES UNDER TITLE II HAVE A RIGHT TO A JURY TRIAL . . . . . . . . . . . . . . . . . . . 23 - i - 01-05189 TABLE OF CONTENTS (continued): PAGE CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 23 TABLE OF AUTHORITIES CASES: Aikins v. St. Helena Hosp., 843 F. Supp. 1329 (N.D. Cal. 1994) . . . . . . . . . . . . . . . . . . . 20 Bachman v. American Soc'y of Clinical Pathologists, 577 F. Supp. 1257 (D.N.J. 1983) . . . . 20 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . 20 Cannon v. University of Chicago, 441 U.S. 677 (1979) . . . . . . . . . . . . . . . . . 10 Carpenter v. Department of Transp., 13 F.3d 313 (9th Cir. 1994) . . . . . . . . . . . . . 20 Carter v. Orleans Parish Pub. Sch., 725 F.2d 261 (5th Cir. 1984) . . . . . . . . . . . . . 19 Christopher N. v. McDaniel, 569 F. Supp. 291 (N.D. Ga. 1983) . . . . . . . . . . . . . . . . . . . 20 Consolidated Rail Corp. v. Darrone, 465 U.S. 624 (1984) . . . . . . . . . . . . . . . . . 15 DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 911 F.2d 1377 (10th Cir. 1990), cert. denied, 498 U.S. 1074 (1991) . . . . . . . . . . . . . . . . . 19 Eastman v. Virginia Polytechnic Inst. & State Univ., 939 F.2d 204 (4th Cir. 1991) . . . . . . . . . . . . . 21 Fitzgerald v. Green Valley Area Educ. Agency, 589 F. Supp. 1130 (S.D. Iowa 1984) . . . . . . . . . . 20 Franklin v. Gwinnet County Pub. Sch., 503 U.S. 60 (1992) . . . . . . . . . . . . . . . . passim Gelman v. Department of Educ., 544 F. Supp. 651 (D. Colo. 1982) . . . . . . . . . . . . . . . . . . . 20 Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103 (9th Cir. 1987) . . . . . . . . . 20 - ii - 01-05190 CASES (continued): PAGE Guardians Ass'n v. Civil Service Comm'n of New York City, 463 U.S. 582 (1983) . . . . . . 15, 16, 17 Hutchings v. Erie City and County Library Bd. of Directors, 516 F. Supp. 1265 (W.D. Pa. 1981) . . . . . 20 J.L. v. Social Security Admin., 971 F.2d 260 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . 20 Jenkins v. Skinner, 771 F. Supp. 133 (E.D. Va. 1991) . . 21 Kedra v. Nazareth Hosp., 868 F. Supp. 733 (E.D. Pa. 1994) . . . . . . . . . . . . . . . . . . . 20 Lane v. Pena, 867 F. Supp. 1050 (D.D.C. 1994) . . . . . .20 Miener v. State of Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982) . . 12, 20 Moore v. Warwick Pub. Sch. Dist., 794 F.2d 322 (8th Cir. 1986) . . . . . . . . . . . . . 20 Neighborhood Action Coalition v. Canton, 882 F.2d 1012 (6th Cir. 1989) . . . . . . . . . . . . 16 Nelson v. Thornburgh, 567 F. Supp. 369 (E.D. Pa. 1983), aff'd without op., 732 F.2d 146 (3d Cir. 1984), cert. denied, 469 U.S. 1188 (1985) . . . . . . . . . . . . . . . . . . . . . 20 Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968) . . . . . . . . . . . . . . 2, 11 Panazides v. Virginia Bd. of Educ., 13 F.3d 823 (4th Cir. 1994) . . . . . . . . . . . 21, 23 Patton v. Dumpson, 498 F. Supp. 933 (S.D.N.Y. 1980) . . 20 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) . . . . . . . . . . . . . . . . 14, 15 Poole v. South Plainfield Bd. of Educ., 490 F. Supp. 948 (D.N.J. 1980) . . . . . . . . . . . . 20 Prewitt v. United States Postal Serv., 662 F.2d 292 (5th Cir. 1981) . . . . . . . . . . . . . 17 Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372 (10th Cir. 1981) . . . . . . . . . . 10, 19 - iii - 01-05191 CASES (continued): PAGE Rivera Flores v. Puerto Rico Tel. Co., 776 F. Supp. 61 (D.P.R. 1991) . . . . . . . . . . . . 21 Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642 (8th Cir. 1994) . . . . . . . . . . . . . 20 Sabo v. O'Bannon, 586 F. Supp. 1132 (E.D. Pa. 1984) . . . . . . . . . . . . . . . . . . . 19 Smith v. Barton, 914 F.2d 1330 (9th Cir. 1990), cert. denied, 501 U.S. 1217 (1991) . . . . . . . . . . 23 Smith v. Robinson, 468 U.S. 992 (1984) . . . . . . . . . 20 Southeastern Community College v. Davis, 442 U.S. 397 (1979) . . . . . . . . . . . . . . . . . 17 Tafoya v. Bobroff, 865 F. Supp. 742 (D.N.M. 1994) . . . . . . . . . . . . . . . . . . . . 9 Torcasio v. Murray, 862 F. Supp. 1482 (E.D. Va. 1994) . . . . . . . . . . . . . . . . . . . 9 Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) . . . . . . . . . . . . . . . . . 2 Waldrop v. Southern Co. Services, Inc., 24 F.3d 152 (11th Cir. 1994) . . . . . . . . . . . . . 23 Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) . . . . . . . . . . . . . . . . . 7 Wilder v. City of New York, 568 F. Supp. 1132 (E.D.N.Y. 1983) . . . . . . . . . . . . . . . . . . . 19 Wood v. Spring Hill College, 978 F.2d 1214 (11th Cir. 1992) . . . . . . . . . . . . . . . . . . . 19 CONSTITUTION AND STATUTES: United States Constitution, Seventh Amendment . . . . . . . . . . . . . . . . 6, 23 Eleventh Amendment . . . . . . . . . . . . . . . . . . 10 Fourteenth Amendment . . . . . . . . . . . . . . . . . 16 Commerce Clause . . . . . . . . . . . . . . . . . . . 16 Spending Clause . . . . . . . . . . . . . . . 14, 15, 16 Americans With Disabilities Act, 42 U.S.C. 12101(b)(4) . . . . . . . . . . . . . . . . 16 Title II, 42 U.S.C. 12131-12165 . . . . . . . . . . . 2 - iv - 01-05192 CONSTITUTION AND STATUTES (continued): PAGE 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . 6 42 U.S.C. 12133 . . . . . . . . . . . . . . 2, 5, 10, 11 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12202 . . . . . . . . . . . . . . . . . . . 10 Title III, 42 U.S.C. 12181-12189 . . . . . . . . . . . 11 42 U.S.C. 12188(a)(1) . . . . . . . . . . . . . . . . 11 42 U.S.C. 12188(b)(2)(B) . . . . . . . . . . . . . . . 11 Civil Rights Act of 1964, Title II, 42 U.S.C. 2000a-3 . . . . . . . . . . . . . 11 42 U.S.C. 2000a-3(a) . . . . . . . . . . . . . . . . . 11 Title VI, 42 U.S.C. 2000d, et seq. . . . . . . . . . . 10 42 U.S.C. 2000d-7 . . . . . . . . . . . . . . . . . . 10 Education Amendments of 1972, Title IX, 20 U.S.C. 1681-1688 . . . . . . . . . . . . 8 Rehabilitation Act, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . 5 29 U.S.C. 794a . . . . . . . . . . . . . . . . . . . 10 28 U.S.C. 1291 .. . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1331 .. . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. 1981a(a)(2) . . . . . . . . . . . . . . . . 13 42 U.S.C. 6010 . . . . . . . . . . . . . . . . . . . . 15 REGULATIONS: 28 C.F.R. 35.130 (1994) . . . . . . . . . . . . . . . . 7 28 C.F.R. 35.130(b)(7) (1994) . . . . . . . . . . . . . 7 28 C.F.R. 35.149 (1994) . . . . . . . . . . . . . . 6, 18 28 C.F.R. 35.149-35.150 . . . . . . . . . . . . . . . . 7 28 C.F.R. 35.150(b)(1) (1994) . . . . . . . . . . . . 18 28 C.F.R. 35.170-35.178 (1994) . . . . . . . . . . . . 2 45 C.F.R. 80.3(b)(2) (1982) . . . . . . . . . . . . . 18 LEGISLATIVE HISTORY: S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . . . . . 11 H.R. Rep. No. 485 (Part II), 101st Cong., 2d Sess. (1990) . . . . . . . . . . 11, 12 H.R. Rep. No. 485 (Part III), 101st Cong., 2d Sess. (1990) . . . . . . . . . . . 11, 12 - v - 01-05193 LEGISLATIVE HISTORY (continued): PAGE 135 Cong. Rec. 19,840 (1989) . . . . . . . . . . . . . 13 135 Cong. Rec. 19,855 (1989) . . . . . . . . . . . . . 13 STATEMENT OF RELATED APPEALS The United States is unaware of any prior or related appeals. - vi - 01-05194 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 94-3344 LEWIS "TOBY" TYLER, Plaintiff-Appellant v. CITY OF MANHATTAN, KANSAS, Defendant-Appellee APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE STATEMENT OF JURISDICTION The district court entered final judgment on October 7, 1994 (Doc. 79), and plaintiff filed a timely notice of appeal the same day (Doc. 80). This Court has jurisdiction under 28 U.S.C. 1291. The district court's jurisdiction was based on 28 U.S.C. 1331. ISSUES PRESENTED AND STANDARD OF REVIEW The United States will address two issues: 1. Whether a private plaintiff may seek compensatory damages for a violation of the "reasonable modifications" requirement of Title II of the Americans With Disabilities Act (ADA), regardless of whether the defendant engaged in intentional discrimination. 2. Whether a private plaintiff who seeks compensatory damages under Title II of the ADA is entitled to a jury trial. Both are legal questions subject to de novo review. 01-05195 - 2 - INTEREST OF THE UNITED STATES The United States has significant responsibilities for enforcing and implementing Title II of the ADA, 42 U.S.C. 12131- 12165 (Title II). See 42 U.S.C. 12133, 12134. The Department of Justice coordinates the Title II enforcement activities of various federal agencies, and may file suit in federal court when a discrimination complaint cannot be resolved through voluntary means. 28 C.F.R. 35.170-35.178 (1994). The Court's decision in this case may affect the remedies available in Title II actions brought by the Attorney General. The federal government also depends heavily on "private attorneys general" to supplement its enforcement efforts under Title II and other civil rights statutes. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972); Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968) (per curiam). The United States thus has a strong interest in ensuring that discrimination victims can obtain complete relief for their injuries through private litigation. STATEMENT OF THE CASE A. Procedural History In February 1993, appellant Lewis "Toby" Tyler filed suit against the City of Manhattan, alleging violations of Title II and the administrative regulations promulgated pursuant to the statute (Doc. 1). Tyler sought injunctive relief under Count I of his complaint, an injunction and $50,000 in compensatory 01-05196 - 3 - damages on Count II and another $50,000 under Count III. He demanded a jury trial on Counts II and III (Doc. 27 at 3-7, 11). The district court granted summary judgment to Manhattan on Count III, but denied summary judgment on Count I and on most of Tyler's claims under Count II (Doc. 41 at 9-29). The court then sua sponte struck Tyler's request for compensatory damages and a jury trial under Count II, and held that he could seek only declaratory and injunctive relief (Doc. 49 at 2-6). Tyler moved for reconsideration, but his motion was denied (Docs. 50, 51). After a trial on Counts I and II, the district court held that the City had violated Title II and its implementing regulations (Doc. 66). The court ordered injunctive relief and entered judgment on July 8, 1994 (Doc. 67). On July 18, 1994, Manhattan moved for clarification or amendment of the court's judgment or, alternatively, a new trial (Doc. 68). The court denied the City's motion on September 12, 1994 (Doc. 77), and entered judgment on October 7, 1994 (Doc. 79). B. Facts Tyler, a resident of Manhattan, is paralyzed as a result of a gunshot wound to the head that he suffered while working as a police officer (Doc. 66 at 1-2). He uses a wheelchair and is a "qualified individual with a disability" protected by Title II (id. at 1, 25). See 42 U.S.C. 12131(2). In Count II of his complaint, Tyler alleged that Manhattan had violated Title II and the administrative regulations by excluding him from participation in City services, programs and 01-05197 - 4 - activities (Doc. 1 at 3).1/ He contended that this exclusion caused him "[m]ental anguish and humiliation, embarrassment and denial of his right of participation" (Doc. 27 at 5). After trial, the district court concluded that Tyler had proved a number of violations under Count II of his complaint. The court found, for example, that Manhattan had unlawfully excluded Tyler from City-sponsored recreational events by holding them at sites that were not fully accessible to wheelchair users (Doc. 66 at 41-42). Physical barriers impeded Tyler's ability to attend his children's baseball games at City ball fields, prevented him from entering a City park, and precluded him from watching tennis tournaments at City courts (id. at 19-21, 41). Although Tyler had repeatedly asked City officials to correct these problems prior to filing his lawsuit, Manhattan failed to remove the barriers, to relocate the recreational events to accessible sites, or to otherwise accommodate Tyler's special needs (id. at 11, 19-20). The court also held that Manhattan had clearly violated Title II by impermissibly excluding Tyler from a City Commission meeting in November 1992 (id. at 38). Tyler tried to attend the meeting, which was held on the second floor of City Hall, but was unable to do so because the elevator was not working (id. at 13- 14, 38). Although Tyler notified City officials of the problem and requested that they relocate the meeting to a wheelchair- 1/ We limit our discussion to Count II, the only count at issue in the district court's order striking Tyler's request for compensatory damages and a jury trial (Doc. 49 at 1-2). 01-05198 - 5 - accessible location, they refused to move or postpone the session (id. at 14, 38). Finally, the court found that Manhattan violated Title II by denying Tyler equal access to restrooms at the Municipal Court building (id. at 43). The public restrooms on the main floor were not wheelchair-accessible, and wheelchair users were required to borrow a key from court employees to gain access to a toilet on the second floor (id. at 22, 43). C. District Court's Opinion On Damages And Jury Trial In striking Tyler's request for compensatory damages and a jury trial, the district court relied heavily on caselaw interpreting Section 504 of the Rehabilitation Act, 29 U.S.C. 794 (Section 504). The judge first noted that Title II incorporates the remedial provisions of Section 504 (Doc. 49 at 2). See 42 U.S.C. 12133. Believing that most courts had held that compensatory damages were unavailable under Section 504 for emotional injuries, the judge concluded that no such relief was authorized under Title II (Doc. 49 at 3, 5-6). The judge acknowledged Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992), which reaffirmed the general rule that "absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute" (Doc. 49 at 4, quoting 503 U.S. at 70-71). Nonetheless, the district court found Franklin distinguishable because the plaintiff in that case had alleged intentional discrimination, 01-05199 - 6 - whereas, according to the court, Tyler had made no such allegations. Alternatively, the district court suggested that even if compensatory damages were available in the absence of discriminatory intent, such relief was inappropriate in Tyler's case since an injunction could provide an adequate remedy (Doc. 49 at 5). On the jury issue, the judge concluded that Section 504 does not provide a right to a jury trial, and thus only bench trials are available under Title II (Doc. 49 at 3). The court did not address the distinct question whether the Seventh Amendment gives plaintiffs the right to have their statutory damages claims decided by a jury, even if Title II and Section 504 themselves do not mandate a jury trial. INTRODUCTION AND SUMMARY OF ARGUMENT This case involves Title II of the ADA, which bars state and local governments from discriminating against qualified individuals with disabilities. 42 U.S.C. 12132. Title II broadly prohibits the exclusion of individuals, by reason of their disabilities, from participation in public services, programs or activities. Ibid. Such unlawful exclusion can occur when a public entity provides programs or activities at facilities that are "inaccessible to" individuals with disabilities. 28 C.F.R. 35.149 (1994). Civil rights law has long recognized two distinct types of discrimination: (1) intentional discrimination, also commonly known as "disparate treatment," which involves treating a person 01-05200 - 7 - less favorably than others because of his or her race, gender, disability or some other protected status, and (2) "disparate impact" discrimination, which involves use of a facially neutral rule or practice that has a disproportionate adverse effect on individuals in a protected class, as compared to other persons. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645-646 (1989) (recognizing both theories in race discrimination cases under Title VII of the Civil Rights Act of 1964). Like several other civil rights statutes, Title II prohibits both disparate treatment and disparate impact discrimination. See generally 28 C.F.R. 35.130. But Title II also bars a third, distinct type of discrimination: the failure to "make reasonable modifications in policies, practices, or procedures" that are necessary to accommodate the special needs of individuals with disabilities. 28 C.F.R. 35.130(b)(7) (1994). Title II requires such modifications unless they "would fundamentally alter the nature of the service, program, or activity." Ibid. This special obligation includes a duty to make public programs, services and activities accessible to persons with disabilities. Id. at  35.149-35.150. Count II of Tyler's complaint alleged, in part, that Manhattan failed to make the reasonable modifications necessary to give him access to City meetings and recreational events. Private plaintiffs who allege violations of Title II's "reasonable modifications" requirement are entitled to seek compensatory damages and a jury trial, regardless of a 01-05201 - 8 - defendant's motivation. Allowing plaintiffs to seek such relief is consistent with the well-established presumption that compensatory damages are available to remedy violations of federal statutes unless Congress has clearly indicated otherwise. Congress has not expressly limited the relief available under Title II, but instead, has indicated that private plaintiffs should have a "full panoply of remedies" under the statute. Compensatory damages are an appropriate remedy under Title II. Full relief will often be impossible without such damage awards. For example, an injunction simply cannot provide complete redress for injuries suffered as a result of an individual's unlawful exclusion from public events or programs that have already taken place. Compensatory damages will also help deter violations of Title II. Since compensatory damages are available under Title II (regardless of whether the defendant acted with discriminatory intent), the Seventh Amendment provides a right to a jury trial whenever a plaintiff seeks such relief. ARGUMENT I PLAINTIFFS MAY SEEK COMPENSATORY DAMAGES FOR VIOLATIONS OF TITLE II'S "REASONABLE MODIFICATIONS" REQUIREMENT WITHOUT ALLEGING INTENTIONAL DISCRIMINATION In Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992), the Supreme Court held that a private plaintiff could seek compensatory damages under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681-1688 (Title IX). In reaching 01-05202 - 9 - that conclusion, the Court reaffirmed the long-standing rule that where a statute provides a private right of action (either expressly or implicitly), courts must presume the availability of "all appropriate remedies" unless Congress has clearly indicated otherwise. 503 U.S. at 66. The district court erred in failing to apply this well-established presumption to Tyler's claim for compensatory damages. A. Congress Did Not Rebut The Presumption In Favor Of Compensatory Damages The key question under Franklin is whether Congress clearly intended to restrict the availability of compensatory damages under Title II by requiring private plaintiffs to prove intentional discrimination to obtain such relief. Neither the statutory language nor the legislative history reflects any such intent. Indeed, the legislative history suggests that Congress intended to allow compensatory damages for any violation of Title II.2 1. Statutory Language Nothing in the language of Title II suggests a limitation on compensatory damages. The statute provides that Title II 2 We are aware of only two other courts that have addressed the issue of compensatory damages under Title II. Relying on the decision in the present case, the district court in Tafoya v. Bobroff, 865 F. Supp. 742 (D.N.M. 1994), held that no compensatory damages are available under Title II in the absence of intentional discrimination. Id. at 749-750. Although Tafoya is currently before the Tenth Circuit, No. 94-2246, we understand that the appellant in that case has not raised the damages question. Another court has concluded that compensatory damages are available under Title II, without specifying whether proof of intentional discrimination is necessary. Torcasio v. Murray, 862 F. Supp. 1482, 1489 (E.D. Va. 1994). 01-05203 - 10 - plaintiffs shall have the "remedies, procedures, and rights" set forth in 29 U.S.C. 794a (which governs the relief available under Section 504 of the Rehabilitation Act). 42 U.S.C. 12133. In turn, 29 U.S.C. 794a gives Section 504 plaintiffs the "remedies, procedures, and rights set forth in [T]itle VI of the Civil Rights Act of 1964," 42 U.S.C. 2000d, et seg. Title VI makes clear that damages are available under that statute and under Section 504. In 1986, Congress added a provision to Title VI abrogating States' Eleventh Amendment immunity and clarifying that "remedies both at law and in equity" are available against State defendants under various statutes (including Title VI, Section 504 and Title IX) to the same extent as against other defendants. 42 U.S.C. 2000d-7. The ADA contains a virtually identical provision. See 42 U.S.C. 12202. The term "remedies * * * at law" clearly includes damages, see Franklin, 503 U.S. at 76, and reflects Congress' understanding that such relief is available under Title VI and Section 504. The Supreme Court in Franklin relied heavily on Section 2000d-7 in holding that a private plaintiff could seek compensatory damages under Title IX. 503 U.S. at 72-73. See also id. at 78 (Scalia, J., concurring). Franklin's analysis of Title IX is highly relevant to the present case since that statute, like Title II and Section 504, was patterned on Title VI. See Cannon v. University of Chicago, 441 U.S. 677, 694 (1979); Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1379 (10th Cir. 1981). 01-05204 - 11 - Since damages are authorized under Title VI and Section 504, they are also available under Title II of the ADA. See 42 U.S.C. 12133. By authorizing damage awards under Title II without expressly imposing restrictions on such relief, Congress has reinforced the presumption that compensatory damages are available for any violation of the statute, regardless of whether the plaintiff proves intentional discrimination. If Congress had intended to limit the relief available to private plaintiffs under Title II, we believe it would have done so expressly, as it did in Title III of the ADA, 42 U.S.C. 12181- 12189. Although that provision expressly authorizes the Attorney General to seek compensatory damages on behalf of an aggrieved person, 42 U.S.C. 12188(b)(2)(B), it limits the relief available in private actions under Title III by adopting the "remedies and procedures" of 42 U.S.C. 2000a-3 (Title II of the Civil Rights Act of 1964, which deals with public accommodations). 42 U.S.C. 12188(a)(1). Since Section 2000a-3(a) authorizes only "preventive relief," such as an injunction or restraining order, see Newman, 390 U.S. at 402, damages are also unavailable in private actions under Title III.3/ Unlike Title III, however, Title II relies on the remedies of Section 504 and Title VI, which do allow private plaintiffs to seek compensatory damages for any violation. 3 See H.R. Rep. No. 485 (Part II), 101st Cong., 2d Sess. 24 (1990); H.R. Rep. No. 485 (Part III), 101st Cong., 2d Sess. 66-68 (1990); S. Rep. No. 116; 101st Cong. 1st Sess. 76 (1989). 01-05205 - 12 - 2. Legislative History Nor does the legislative history reveal any congressional intent to require proof of intentional discrimination to recover compensatory damages under Title II. Rather, it suggests precisely the opposite. Two House Committee Reports, for example, emphasized that "[a]s with section 504, there is also a private right of action for persons with disabilities, which includes the full panoply of remedies." H.R. Rep. No. 485 (Part II), 101st Cong., 2d Sess. 98 (1990) (emphasis added). Accord H.R. Rep. No. 485 (Part III), 101st Cong., 2d Sess. 52 (1990). The "full panoply" language indicates Congress' intent to allow private litigants to seek any relief traditionally awarded by the courts, including compensatory damages. Significantly, one of the Committee Reports cited an Eighth Circuit decision to illustrate the remedies available under Section 504 (and thus also under Title II). H.R. Rep. No. 485 (Part III), supra, at 52 & n.62, citing Miener v. State of Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982). In Miener, the Eighth Circuit held that "damages are available under S 504 as a necessary remedy for discrimination" against a disabled individual, id. at 979, but did not limit its holding only to cases involving intentional discrimination. In reaching that result, Meiner expressly relied on the presumption that "federal courts may use any available remedy to make good the wrong" caused by a violation of a federal statute. Id. at 977. 01-05206 - 13 - The floor debate confirms that Congress intended to make damages available to private litigants under Title II, but not under other provisions of the ADA.4/ For example, Senator Harkin, the chief sponsor of the legislation in the Senate, emphasized that damages were available to private litigants under Title II: It is true that the employment provisions of title I make available the rights and remedies of title VII of the 1964 Civil Rights Act, which provides for backpay and equitable relief. Also under the public accommodations provisions of title III, the bill expressly limits relief to equitable remedies. However, title II of the act, covering public services, contains no such limitations. Title II of the bill makes available the rights and remedies also available under section 505 of the Rehabilitation Act, and damages remedies are available under that provision enforcing section 504 of the Rehabilitation Act and, therefore, also under title II of this bill. 135 Cong. Rec. 19,855 (1989) (emphasis added). Senator Kennedy, an original sponsor of the legislation, displayed a similar understanding of Title II. Id. at 19,840 (no damages in private actions under ADA, "except those involving public services, as under section 504"). Although this legislative history does not expressly state that compensatory damages are available in the absence of intentional discrimination, it supports -- rather than rebuts -- the Franklin rule that a full panoply of remedies is available for any violation of Title II. In sum, neither the statutory language nor the legislative history reveals "any legislative intent to abandon the 4/ Congress later enacted legislation, however, that expanded the relief available under Title I to include compensatory damages. See 42 U.S.C. 1981a(a)(2). 01-05207 - 14 - traditional presumption in favor of all available remedies." Franklin, 503 U.S. at 72. Tyler must therefore be allowed to seek such relief for any violation of the statute, regardless of whether Manhattan acted with discriminatory intent. B. The Franklin Presumption Applies Under Title II Regardless Of Whether The Plaintiff Alleges Intentional Discrimination Instead of examining congressional intent, however, the district court apparently assumed that the Franklin presumption would not apply under Title II in the absence of intentional discrimination. This assumption is based on a faulty reading of Franklin. Franklin did not hold that discriminatory intent was a prerequisite for recovery of damages under Title IX, or that the usual presumption would not apply in the absence of such intent. The Court simply had no occasion to decide that issue since the plaintiff in Franklin alleged intentional discrimination. In dictum, Franklin drew a distinction between "intentional" and "unintentional" discrimination in rejecting the defendants' argument "that the normal presumption in favor of all appropriate remedies should not apply because Title IX was enacted pursuant to the Congress' Spending Clause power." Id. at 74. The Franklin Court read Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981), as suggesting that remedies for "uninten- tional" discrimination may be limited under Spending Clause statutes because a recipient of federal funds might lack notice that it will be liable for a monetary award for such a violation. 503 U.S. at 74. But Franklin itself did not endorse such a 01-05208 - 15 - limitation for "unintentional" discrimination under Spending Clause legislation. Rather, the Court merely emphasized that any lack-of-notice problems that might exist in cases of "unintentional" violations would not arise in lawsuits challenging intentional discrimination because the recipients of federal funds clearly know that such purposeful conduct is unlawful. Id. at 74-75. Franklin thus left open the question whether the usual presumption in favor of all available remedies would apply to Spending Clause legislation in cases where plaintiffs alleged only "unintentional" discrimination.5/ 5/ Nor did Pennhurst resolve this issue. Pennhurst merely held that 42 U.S.C. 6010 created no substantive rights in favor of private plaintiffs. 451 U.S. at 15-27. The Court had no reason to decide what remedies would have been available under that statute if, arguendo, it had created substantive rights. Although Pennhurst contains dictum questioning whether damages would ever be an appropriate remedy for a violation of Spending Clause legislation, see id. at 29-30, that language drew no distinction between intentional and unintentional discrimination. And, of course, Pennhurst's hint that damages may never be available to private plaintiffs under Spending Clause legislation has been put to rest by Franklin itself. Nonetheless, two Justices have interpreted Pennhurst as creating a rebuttable "presumption that only limited injunctive relief should be granted as a remedy for unintended violations of statutes passed pursuant to the spending power." Guardians Ass'n v. Civil Service Comm'n of New York City, 463 U.S. 582, 602 (1983) (opinion of White, J., joined by Rehnquist, J.). That reading of Pennhurst, however, has never garnered the support of a majority of the Court and, in fact, was specifically repudiated by five justices in Guardians. See id. at 612 (O'Connor, J., concurring in judgment) (endorsing Part I of Justice Stevens' dissent, which rejected Justice White's reading of Pennhurst); id. at 636-639 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting); id. at 624-633 (Marshall, J., dissenting). Indeed, the Supreme Court has twice confirmed that Justice White's views did not represent the majority position. Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 n.9 (1984) (a "majority of the Court agreed that retroactive relief is available to private (continued...) 01-05209 - 16 - But even if compensatory damages were unavailable for "unintentional" violations of Spending Clause legislation, such a limitation would have no bearing on Tyler's case. First, Title II is not Spending Clause legislation. Unlike Title VI or Title IX, the ADA's prohibitions against discrimination apply regardless of whether the covered entity receives federal funding; indeed, in enacting the ADA, Congress made clear that it was exercising its Fourteenth Amendment and Commerce Clause powers. See 42 U.S.C. 12101(b)(4). Second, the conduct that Tyler has challenged in this lawsuit cannot be characterized as "unintentional" in the sense that term was used in Franklin and other Spending Clause cases, such as Guardians Ass'n v. Civil Service Comm'n of New York City, 463 U.S. 582 (1983). Justice White's opinion in Guardians illustrates this point. He argued that "intentional" and "unintentional" discrimination should be treated differently for purposes of determining whether compensatory relief is available under Spending Clause legislation.6/ Id. at 597-603. Justice White used the term "unintentional" to distinguish "disparate impact" discrimination from disparate treatment, id. at 598 -- the only two theories of discrimination that were at issue in 5/ (...continued) plaintiffs for all discrimination, whether intentional or unintentional, that is actionable under Title VI"); Franklin, 503 U.S. at 70 (quoting passage from Darrone). See also Neighborhood Action Coalition v. Canton, 882 F.2d 1012, 1015 (6th Cir. 1989). 6/ A majority of the Court has never accepted Justice White's attempt to limit the relief available for "unintentional" violations of Spending Clause legislation. See note 5, supra. 01-05210 - 17 - Guardians. By contrast, Count II of Tyler's complaint relied, at least in part, on a third type of discrimination: the failure to make modifications, including the removal of barriers, to provide access to persons with disabilities. See p. 7, supra. This is one of the most common forms of discrimination against persons with disabilities, and is distinct from either disparate treatment or disparate impact. See Prewitt v. United States Postal Serv., 662 F.2d 292, 305 & n.19, 306-309 (5th Cir. 1981) (noting distinctions between disparate treatment, disparate impact, and failure to accommodate through modification of barriers). See also Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979) (duty under Section 504 "to modify an existing program"). Tyler's claims are clearly distinct from the type of disparate-impact dispute at issue in Guardians. The plaintiffs in Guardians were challenging the use of written employment examinations that had a disparate impact on blacks and Hispanics and were not job-related. 463 U.S. at 585. A defendant who administers a test that has disparate impact may not know, in advance of the filing of a lawsuit, what the racial effects of the test were or that anyone would object to its use. Most "reasonable modifications" cases simply do not raise the same lack-of-notice problems that can exist in disparate-impact challenges to employment examinations. Many "reasonable modifications" cases, including Tyler's, arise only after a defendant has rebuffed a specific request from a person with a 01-05211 - 18 - disability to remove a barrier or modify a practice. In such situations, the defendant is put on notice before the filing of the lawsuit that such barrier or practice is excluding a person protected by the ADA. The risk of surprise in such cases simply is not as great as it may be in disparate-impact disputes. Title II's regulations also provide defendants a clearer understanding of their statutory obligations than did the disparate-impact regulations at issue in Guardians. With certain exceptions, the Title II regulations specify that no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity * * *. 28 C.F.R. 35.149 (1994). They also provide public entities with examples of how to comply with the accessibility requirements. Id. at S 35.150(b)(1). These regulations certainly explain a defendant's obligations with more specificity than did the Title VI regulations at issue in Guardians. See, e.g., 45 C.F.R. 80.3(b)(2) (1982) (recipients may not use selection criteria that "have the effect of subjecting individuals to discrimination because of their race"). The Title II regulations make clear that public entities generally are prohibited from holding meetings or recreational events in locations that are inaccessible to wheelchair users. The City of Manhattan thus has no reason to complain about lack of notice. In short, the Franklin presumption in favor of compensatory damages applies under Title II, regardless of whether the 01-05212 - 19 - plaintiff alleges disparate treatment. That presumption is particularly appropriate in Tyler's case, since he based his claims on the failure to make reasonable modifications and expressly notified the City before the lawsuit that such alterations were necessary to provide him access to public services and programs. C. The District Court Overlooked Caselaw Authorizing Compensatory Damage Awards Under Section 504 In The Absence Of Intentional Discrimination In striking Tyler's claim for damages, the district judge presented a distorted view of Section 504 caselaw by overlooking numerous decisions that allowed plaintiffs to seek compensatory damages in the absence of disparate treatment.7/ Several courts have allowed private plaintiffs to seek damages under Section 504 without proving intentional discrimination. At least one court has expressly held that a showing of discriminatory intent is unnecessary to recover compensatory damages under Section 504. Wilder v. City of New York, 568 F. Supp. 1132, 1136 (E.D.N.Y. 1983).8 Other courts, while not expressly discussing the discriminatory intent issue, have held that compensatory damages are available under Section 504, even though 7 This Court has not yet decided whether, or under what circumstances, compensatory damages are available under Section 504. See DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1393 n.12 (10th Cir. 1990), cert. denied, 498 U.S. 1074 (1991); Pushkin, 658 F.2d at 1377-1378 n.2. 8 But see, e.g., Wood v. Spring Hill College, 978 F.2d 1214, 1219-1220 (11th Cir. 1992) (discriminatory intent required); Carter v. Orleans Parish Pub. Schs., 725 F.2d 261, 264 (5th Cir. 1984) (same); Sabo v. O'Bannon, 586 F. Supp. 1132, 1137-1138 (E.D. Pa. 1984) (same). 01-05213 - 20 - the plaintiffs in those cases based their claims on a failure to make reasonable accommodations to persons with disabilities, rather than on allegations of disparate treatment. See, e.g., J.L. v. Social Security Admin., 971 F.2d 260, 262-265, 272 (9th Cir. 1992) (failure to accommodate needs of mentally disabled applicants); Bonner v. Lewis, 857 F.2d 559, 560-566 (9th Cir. 1988) (failure to provide interpreters to deaf inmate); Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1106- 1109, 1111 (9th Cir. 1987) (refusal to provide interpreters to enable deaf individuals to serve as jurors).9 Still other decisions have held that compensatory damages are available under Section 504, without expressly limiting their holdings only to cases alleging discriminatory intent.10 These decisions are 9 See also Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1335- 1336, 1339 (N.D. Cal. 1994) (alleged failure to make reasonable accommodations); Fitzgerald v. Green Valley Area Educ. Agency, 589 F. Supp. 1130, 1138 (S.D. Iowa 1984) (same); Bachman v. American Soc'y of Clinical Pathologists, 577 F. Supp. 1257, 1259- 1262 (D.N.J. 1983) (same); Nelson v. Thornburgh, 567 F. Supp. 369, 370-371, 382-383 (E.D. Pa. 1983) (same), aff'd without op., 732 F.2d 146 (3d Cir. 1984), cert. denied, 469 U.S. 1188 (1985); Gelman v. Department of Educ., 544 F. Supp. 651, 652-654 (D. Colo. 1982) (same). 10 See, e.g., Rodgers v. Magnet Cove Pub. Sch., 34 F.3d 642, 643 (8th Cir. 1994); Carpenter v. Department of Transp., 13 F.3d 313, 316 (9th Cir. 1994); Moore v. Warwick Pub. Sch. Dist. No. 29, 794 F.2d 322, 325, 330 (8th Cir. 1986); Miener, 673 F.2d at 979; Lane v. Pena, 867 F. Supp. 1050, 1073-1074 (D.D.C. 1994); Kedra v. Nazareth Hosp., 868 F. Supp. 733, 739-740 (E.D. Pa. 1994); Christopher N. v. McDaniel, 569 F. Supp. 291, 296 (N.D. Ga. 1983); Hutchings v. Erie City & County Library Bd. of Directors, 516 F. Supp. 1265, 1267-1269 (W.D. Pa. 1981); Patton v. Dumpson, 498 F. Supp. 933, 937-939 (S.D.N.Y. 1980); Poole v. South Plainfield Bd. of Educ., 490 F. Supp. 948, 949 (D.N.J. 1980). Cf. Smith v. Robinson, 468 U.S. 992, 1020 n.24 (1984) (lower courts "generally agree that damages are available under  504"). 01-05214 - 21 - consistent with the well-established presumption in favor of all available remedies. Yet the district court's opinion never mentioned any of these cases. Moreover, none of the Section 504 decisions on which the district judge relied withstands scrutiny under Franklin. The judge cited seven decisions -- all of which pre-date Franklin -- that denied compensatory damages under Section 504 (Doc. 49 at 3- 4). Six of the seven did not even acknowledge the presumption in favor of all available remedies. Although one case gave lip- service to the presumption, it nonetheless concluded that compensatory damages were unavailable under Section 504 even in cases involving intentional discrimination. See Rivera Flores v. Puerto Rico Tel. Co., 776 F. Supp. 61, 62-70 (D.P.R. 1991). This holding is flatly inconsistent with the Supreme Court's decision in Franklin; indeed, Rivera Flores relied on the Eleventh Circuit decision in Franklin that was reversed by the Supreme Court. Id. at 67-68. Similarly, another case cited by the district judge based its holding on a Fourth Circuit decision that was subsequently repudiated by that Court in light of Franklin. Jenkins v. Skinner, 771 F. Supp. 133, 136 (E.D. Va. 1991), citing Eastman v. Virginia Polytechnic Inst. & State Univ., 939 F.2d 204, 208 (4th Cir. 1991). See Pandazides v. Virginia Bd. of Educ., 13 F. 3d 823, 830 (4th Cir. 1994) ("Eastman can no longer be considered good law"). The district judge's opinion in the present case, like the decisions it relied upon, simply cannot be squared with Franklin. 01-05215 -22- D. Compensatory Damages Are An "Appropriate" Remedy The district court in this case suggested that even if compensatory damages were authorized in the absence of disparate treatment, such relief would not be "appropriate" in this case since an injunction was available. But such reasoning conflicts with Franklin, which makes clear that the availability of equitable relief cannot defeat the presumption in favor of compensatory damages. See 503 U.S. at 75-76. Thus, regardless of whether Tyler would benefit from an injunction, he should also recover a monetary award if he proves that the City's violations of the ADA caused him injury. Limiting the availability of compensatory damages under Title II would undermine Congress' goals in enacting the statute. First, it would leave many discrimination victims without a full remedy. Although injunctive relief is important in Title II cases, it cannot provide a complete remedy to individuals who were unlawfully excluded from important public events or programs that have already taken place. Second, limiting such damages would remove a powerful incentive for state and local governments to comply promptly with their obligations to make programs and services accessible to persons with disabilities. The prospect of injunctive relief simply does not provide sufficient deterrence to those who would violate the statute. 01-05216 -23- II PRIVATE PLAINTIFFS WHO SEEK COMPENSATORY DAMAGES UNDER TITLE II HAVE A RIGHT TO A JURY TRIAL Since compensatory damages are available in this case, Tyler has a right to a jury trial under the Seventh Amendment. See Waldrop v. Southern Co. Servs., Inc., 24 F.3d 152, 154-156 (11th Cir. 1994) (availability of compensatory damages under Section 504 triggers right to jury trial); Pandazides, 13 F.3d at 827-832 (same); Smith v. Barton, 914 F.2d 1330, 1337-1338 (9th Cir. 1990) (same), cert. denied, 501 U.S. 1217 (1991). CONCLUSION The district court's order striking Tyler's request for compensatory damages and a jury trial should be reversed. Respectfully submitted (Signature) __________________________ JESSICA DUNSAY SILVER GREGORY B. FRIEL Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-3876 01-05217 CERTIFICATE OF SERVICE I hereby certify that on May 16, 1995, two copies of the foregoing Brief for the United States as Amicus Curiae were served by first-class mail, postage prepaid, on each of the following counsel: L.J. Leatherman, Esq. Palmer & Lowry Columbian Building 112 W. Sixth, Suite 102 Topeka, Kansas 66603-3810 Kurt A. Level, Esq. Fisher, Patterson, Sayler & Smith 210 Overland Park Bank Building 11050 Roe Avenue Overland Park, Kansas 66211 (Signature) _____________________________ GREGORY B. FRIEL Attorney 01-05218