Texas A&M Law Review

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While the Americans with Disabilities Act (“ADA”) has been law for over 30 years, the Fifth Circuit Court of Appeals has yet to adopt a definitive standard for how plaintiffs win damages under Title II of that law. Further, while the Rehabilitation Act (“RA”) has been law for almost 50 years, the Fifth Circuit has failed to announce any specific standard for how plaintiffs obtain damages under that law as well. I previously wrote an article in the pages of this journal that sought to “clarify” the Fifth Circuit’s jurisprudence on the issue. In Fifth Indifference: Clarifying the Fifth Circuit’s Intent Standard for Damages Under Title II of the Americans with Disabilities Act, 7 Tex. A&M L. Rev. Arguendo 1 (2019), I argued (1) that the Fifth Circuit should adopt the “deliberate indifference” standard and (2) that no Fifth Circuit precedent should be read as explicitly forbidding the adoption of that standard. My paper has seen great success in its downloads and its recent citation in a brief to the Fifth Circuit. However, the Fifth Circuit has still failed to adopt any specific standard and continues to use phrases like “seem to have required” and “something more than deliberate indifference.” Fortunately, what the Fifth Circuit has said and what it has done have been two different things. In reality, the Fifth Circuit has been using nothing more, less, or different than a standard deliberate indifference analysis. Thus, the “seem to have required more than deliberate indifference” standard is a mere charade. This charade should now be abandoned, and the Fifth Circuit should explicitly adopt the deliberate indifference standard. That standard being (1) a defendant knew of facts that presented a substantial risk of harm to an ADA or RA right and (2) the actor or entity failed to act appropriately on that risk.

To make this argument, this Article is divided as follows. Part I discusses the historical and doctrinal background of the ADA and the RA. Part II discusses how other circuits have addressed the issue of damages actions under Title II of the ADA and the RA. Part III discusses the Fifth Circuit’s relevant jurisprudence. Part IV then explains why the Fifth Circuit should explicitly adopt deliberate indifference. Finally, Part V briefly argues why lower courts and any individual panels of the Fifth Circuit could ignore the “something more than deliberate indifference” standard and explicitly adopt ordinary “deliberate indifference.”



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