Title IX: pay for better girls sports or pay their attorneys

Out of California comes a cautionary tale about fighting lawsuits and gender equity.  According to this article in the San Diego Times, the now cash-strapped school district is having troubles paying the girls' attorneys' fees. 

Many of the familiar federal mandate and remedial laws, including Title IX (as well as Title VI, IDEA, Section 504 and others) provide for fee shifting.  That is, if the school losses some part of the case, the plaintiffs are entitled to a "prevailing party" attorney fee.  Often, the plaintiffs only need to prevail on some part of their claims, not all claims, in order to recoup attorney fees.  This risk is one that schools need to consider when assessing their litigation strategies and choices.

So the bad news for the school district is that it not only is paying for a new softball field (which in fairness is something that likely should have been done before), but also the attorneys.  The good news is that the girls are reported to be thrilled with their new field. 

Another ill-gotten mandate for Pennsylvania public schools

In Lower Merion School District v. Doe, 2007 WL 2792927 (Pa.), through some unfortunate legal reasoning, the Pennsylvania Supreme Court has interpreted § 504 of the Rehabilitation Act, 29 U.S.C. § 794, to mean that a public school district must provide occupational services to a dual-enrolled private school student. In so doing, the court expands the dual enrollment and the Veschi decision mandates to provide public support for private schools. 

In this case, the district evaluated the student, found he was not eligible for special education and related services but was eligible as a protected handicapped student under § 504 and Chapter 15 of the Pennsylvania education regulations, 22 Pa. Code Chap. 15. The district therefore offered a program of appropriate supportive services in order for the student to access his public education. Parents rejected the offer, enrolled student in a private kindergarten, and dually enrolled student in the public school under § 502 of the Pennsylvania School Code, 24 P.S. § 5-502. 

The district argued that its § 504 requirement is limited to only providing equal access to its federally funded programs. Stated another way, one might say § 504 is not a mandate for a public school to intrude into a private school program and fix the private school’s “discrimination.” The Pennsylvania Supreme Court rejected the district’s argument based on some significant misunderstandings.

To begin with, the court was of the opinion that § 504 is “remedial legislation” to be interpreted broadly. But § 504 is legislation enacted under the Constitution’s spending clause. Barnes v. Gorman, 536 U.S. 181, 190 n.3 (2002). As such, the legislation is to be interpreted narrowly, that is, the funding mandate must be spelled out unequivocally to the recipient of federal funds. No case has come to my attention, and none is cited by the court, stating that the legislation gives a funding recipient clear notice that the recipient must address another entity’s lack of access or accommodations for disabled persons.

The court’s next mistake was in concluding the § 504 FAPE obligation applies to all persons living within the boundaries of the school district. In this regard, the court interpreted the federal regulatory phrase “in the recipient’s jurisdiction,” 34 CFR 104.33(a), out of context and law. The regulations cannot expand the scope of legislation, and § 504 itself applies for the benefit of persons participating in a program receiving federal funds. “Jurisdiction” here is a legal limitation and is not, as interpreted by the court, the equivalent of geographic boundaries. Indeed, in another regulatory passage, 34 CFR 104.32(a), cited by the court, the regulations specifically distinguish “residing” in the district’s jurisdiction (in the context of the district’s § 504 child find obligation), thus showing awareness by the regulators of the geographic and legal juridical distinction. Ironically, the court used this specific reference to support its general conclusion, thereby violating an elementary rule of construction.

To its credit, the court noted the state regulations are not intended to expand the federal § 504 requirement. But having already improperly expanded and confused the federal mandate, the point of the state regulations was lost.

In the end, however, the court’s errors regarding federal law are mooted where Pennsylvania’s dual enrollment mandate extends greater protections. Although the court offered no significant discussion of § 502 of the School Code, which permits dual enrollment, as the court noted, students “enrolled” in a district are entitled to services, regardless whether also attending a private school. 

To a practitioner familiar with this area of the law, the decision evidences misunderstanding of child find, FAPE, and various disabilities education mandates, particularly in misconstruing child find obligations to create a right to require the public to make a private school accessible. 

Money damages, disabilities, and education

One shoe has dropped as a result of the recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), which ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.   The full court, aligning itself with other circuit courts and Supreme Court precedent, effectively overruled its 1995 decision in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) (unfortunately, the court's posted opinion is incomplete).

Basically, the court in A.W. reasoned that both IDEA and § 504 provide comprehensive remedies.  Because neither statute gives a textual indication that Congress sought to provide those comprehensive remedies in addition to a § 1983 remedy, the Sea Clammers doctrine bars any § 1983 cause of action. 

The problem for educational institutions (but to the relief of plaintiffs) is that the A.W. case addresses only one part of the Matula decision and money damages may still be available directly under § 504

(although probably not under IDEA – in addition to the simple fact that the statute does not say so, see the cases and discussions in Ortega v. Bibb County School District, 397 F.3d 1321 (11th Cir. 2005) among others). 

The court in Matula wrote "plaintiffs may seek monetary damages directly under § 504, as well as the § 1983 claim predicated on § 504."  As such, money damages claims directly under § 504, untouched by A.W., appear to still be viable in the Third Circuit.  On this issue, the Third Circuit is out-of-step with the other circuit courts and it is an issue the Third Circuit, if not the Supreme Court, will likely need to address in the future.

When that day comes, the viability of money damages based on a direct § 504 recovery theory is questionable. Because it involves a complex analysis similar to A.W., based on a cross- and back-tracking comparison of intervening Supreme Court, Third Circuit cases, and various anti-discrimination statutes, I will not give great detail. But in Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court held that private right of action for money damages requires proof of intentional discrimination, casting doubt on Matula’s reasoning, which was based on earlier Supreme Court cases. Indeed, In Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), (unfortunately the link appears to be dead) the Third Circuit applied the Alexander evidentiary standard.  Recent cases such as Indiana Area School District v. H.H., 428 F. Supp. 2d 361 (W.D. Pa. 2006), show the need for reexamination of the standards for §504 money damages. At a minimum, direct § 504 money damages claims require proof of intentional discrimination or gross negligence.

One shoe has dropped; eventually, the other will, too.